ITLale 2015

The Women of Aleitheia 1
Truth. Honor. Excellence.
TIPS FOR INTRO TO LAW
GENERAL TIPS
• Introduction to Law is a PASS or FAIL course for freshmen students. The subject
covers the various aspects of the concept of law.
• Take the course seriously because it is a good transition from college to law
school. It is a good opportunity to discover the study habits that work for you.
• FIRST IMPRESSION LASTS! This is probably the first and last time that you will
be classmates with everyone from your batch. It is best to be prepared for
recitations to avoid being embarrassed in front of Batch 2018.
• DO NOT BE LATE AND DO NOT BE ABSENT. Come at least 30 minutes before
the start of your class so that you could get good seats. Professors do not like it
when students are late.
• DRESS TO IMPRESS. The Law School has a strict dress code. Students are
supposed to wear decent office attire.
• EAT A TON BEFORE GOING TO CLASS. It will be a very long class each day
so it is advisable to eat dinner before going to the auditorium.
TIPS FOR EASIER REVIEWING

• On your syllabus, write certain KEYWORDS that are familiar and shall be very
easy for you to remember and associate with a case or a reading. Write one or
more keywords on each case name so that when a case or a reading is
mentioned, it shall be less difficult to remember it, knowing that your mind has
stored this information. This has been proven very effective through the years.
• Write also NOTES on your original readings so that when you go through them, it
would be easier for you to remember what the reading is about.
RECITATIONS
• PREPARATION. Nothing beats preparation. Make sure you read all the cases
and can provide a summary of the readings from the top of your head.
• CONFIDENCE. When actually called, observe good posture and be confident.
Make an impression on the professor, and build on the fact that you have
prepared beforehand.
• PROPERLY ANSWER. It is best to frame your answers this way: be responsive
first, meaning answer yes or no, or true or false, etc., when it is called for. Then
provide the legal basis for your answer—whether it’s a law or a case. Discuss the
case or the law briefly, then apply to the situation at hand.
• POLITENESS. Be polite, and hold your ground. Remember, each recit is a test
not only of your knowledge, but also of your composure and how well you keep
your cool despite the stress.
READINGS
• Find a good reading place where you could read and comprehend. This makes a
whole lot of difference. Different study styles work for different people. Find the
one that suits you. Some may read better in a coffee shop or in the library or
even in bed. Find the one that fits!.
• Prepare your materials beforehand. If you need highlighters/pens/pencils,
prepare them. In doing so, you will lessen your distractions while reading.
• How you understand the reading depends on your style. Some prefer reading the
whole thing in one go (without stopping) then reading it again to highlight
essential points. Others prefer reading slowly, digesting the information as they
come. No matter what your style, you should spot the following when reading:
a. The thesis statement. What is this reading trying to prove or disprove? Or
what is the purpose of the author in writing the piece?
b. Supporting statements to the thesis statements.
c. Essential distinctions between concepts.
d. Sources of the statements.
e. Resolution of the thesis statement, if any.
• Finally, summarizing the reading on your own will help you to remember what
you’ve read. Notes on the margins help.
Basic Tips for Law School

• Love your blockmates! You will be the ones enjoying and “suffering” law school
together. They will be your digest group, study/lib/smocket/Draft buddies.
• Study smart. What worked in college may not work in law school. There will be
times when the workload given seems impossible so it helps to know your pacing
and manage your time wisely.
• Prepare well for recitations. It helps to write certain keywords on your syllabus to
easily remember the cases and the law. Know the style of your professors in
conducting recitations. Some professors will not allow you to have anything on
the table, while some would even give you seconds of glance on your books or
handwritten notes.
• Know how to digest cases properly. Case digests are shortened versions of
cases. Making a case digest is very important because it aids in the retention of
information and issues derived from a case. Your digests will be your life-saver
during recitations, especially if your professor assigned too many cases for the
day. Include the FACTS, ISSUES, and RULING of the Court. Most of the time,
you only need to focus on the issues related to the subject matter (e.g. you do
not have to recite issues on Ethics when the subject is Persons).
How to Survive your Freshman Year

• Familiarize yourself with the scholastic responsibility and QPI requirements. (See
Scholastic Responsibility Part)
• Your midterm and final exams will define your fate in law school. Study well for
the exams and know how to structure good answers for exams. You may consult
past samplexes and bluebooks to read examples of answers that merited high
points.
• Respect your professors. Always remember that your professors are not the
scariest persons to be afraid of. They just want to teach you the law in a tough
manner to prepare you for the legal profession. Know each professor’s teaching
style. It help you figure out: whether it be rounds or random, or what reviewers or
books you may need. The professors are nice – you will realize that during the
semester!
FRESHMENT SCHOLASTIC RESPONSIBILITY
WHAT IS THE RETAINING QPI?

• 78% for EACH Semester
• 78% Cumulative Yearly QPI (only applicable for freshmen)
WHEN ARE YOU A DEAN'S LISTER?

• If you have NO failing marks AND you have a QPI of at least 85%
WHEN ARE YOU "SAFE"?

• If you have NO failing marks AND you have a QPI of at least 78%
WHEN ARE YOU PLACED ON PROBATION?

• 1st sem, 75-77.99 and no failing marks
• 1st sem, 75-77.99 and 1 fail
• 1st sem, 75-77.99 with 2 fails
WHAT DOES IT MEAN TO BE PLACED ON PROBATION?

For the 2nd semester:
• you MUST take the full load, except only for subjects w/c require prerequisites
• you CANNOT drop any subject
• you CANNOT take an official leave of absence (LOA), except when necessitated
by illness requiring extended hospitalization & recuperation
• you CANNOT FAIL in ANY SUBJECT, otherwise you will be denied re-enrollment
for sophomore year
WHEN WILL YOU BE DENIED RE-ENROLLMENT?

• if you fail to obtain a QPI of at least 75
• if you fail in at least 3 subjects (regardless of the number of units & even when
the QPI is attained for that semester
• 2nd sem, 75 and probation from 1st sem
• 2nd sem, probation and one or more fails
HOW TO READ A CASE
There are three main things to look for when reading a case: first, look for the facts;
second, identify what the issue of the case is; and third, determine the ruling and the
ratio behind it.
Usually, the facts are presented early on. Have a highlighter ready to note which are the
important facts—these are what you need to present a coherent story. Some professors
prefer a detailed recitation of the facts. However, make sure that the details you
incorporate are related to the topic. Whether the professor wants details or a bare bone
recitation, make sure that you present the facts straightforwardly and coherently.
The issues are usually enumerated and identified by the ponente as the arguments of
the petitioner. When you read a case, you’ll find that the ponente will make a summary
of the petitioner’s arguments. More often than not, those are the issues of the case. After
such enumeration, the ponente will then answer and discuss the issues and the court’s
ruling on each. The issues are often repeated multiple times throughout the course of
the decision, so you really can’t miss them.
TIPS:
1. Issues will always go with the ratio. Each issue is usually discussed separately.
Some justices outline and identify each discussion point, while others don’t.
2. Most cases discuss multiple issues. Take note of the topic under which you’re
discussing the case, and focus on the issues relevant to that topic.
3. If you use SCRA, the issues are those contained in the case syllabus. This is
helpful as the main doctrines will also be pointed out in the case syllabus.
These are the substantive matters you will need in order to remember the case, write a
good digest, and recite well.
On the procedural aspects

When you read a case, the start will most often contain what type of action or suit it is
(certiorari, prohibition, damages), and it will almost always end with the dispositive
portion (“wherefore…”).
The first is important to note what the case is all about (it helps in identifying the issues),
and the last is important because it’s the finale of the case—it’s the result. It pays to put
attention to these parts, because they essentially summarize the skeleton of the case.
Terms To Remember
Plaintiff – the one who files the suit / the complainant

Defendant – the one against whom the case is filed
Petitioner – the plaintiff in a special civil action
Respondent – the defendant in a special civil action
Appellant – the one who appeals the case to a higher tribunal (could be the plaintiff or
the defendant)
Appellee – the one against whom the case is appealed
Ponente – the one who writes the decision
Amicus Curiae – means “friend of the court”
Table!of!Contents!
Kafka, Franz, “Before the Law”, The Trial, reprinted in Before the Law: An
introduction to the Legal Process, 4th ed., 1989 (Bonsignore, J., et. al.):!...............!7!
Kafka, Franz, “Dialogue Between a Priest and K,” The Trial. Reprinted in Before
the Law, ibid.!......................................................................................................................................!7!
Kafka, Franz, “The Problem of Our Laws” and “Couriers”, The Trial, reprinted in
Before the Law, ibid.!.......................................................................................................................!9!
The Concept of Law!............................................................................................................!10!
Rice, Charles, 50 Questions on the Natural Law!.............................................................!11!
Lifted from: PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE (From Ancient
Times to the 21st Century) by Atty. Eugenio H. Villareal; Required reading: Rice,
Charles, 50 Questions on the Natural Law, pp. 43-62, 1993 ed.!................................!12!
Queen v. Dudley & Stephens, 14 QBD 273 (1884).!..........................................................!12!
Altman, A., “Law and Morality”, Arguing about the Law, pp/ 40-78, 2nd ed., 2001.
! 14!
Traditional Natural law (Aquinas)!.......................................................................................................!14!
Inner Morality of the Law (Lon Fuller)!..............................................................................................!15!
Dworkin’s Interpretive Theory!..............................................................................................................!16!
(Legal Positivism) Austin’s Theory of Law!.....................................................................................!19!
(Legal Positivism) Hart’s Primary and Secondary Rules!.......................................................!21!
D’Errico, Peter, “The Law is Terror Put into Words,” pp. 246-249 Before the Law,
supra.!.................................................................................................................................................!30!
Bobbitt, Philip, “Public International Law,” (pp.103-118) A Companion to
Philosophy of Law and Legal Theory, ed. Patterson, 1999.!........................................!32!
Dane, Perry, “Conflict of Laws” (Private International Law), Patterson.!...............!34!
Survey from Past to Present!...........................................................................................!37!
Pre-Spanish Period!......................................................................................................................!38!
Towards the Philippine Republic of 1898!...........................................................................!38!
The Malolos Constitution!..........................................................................................................!38!
Martial Law Period!........................................................................................................................!39!
Sources of Philippine Law!........................................................................................................!40!
Customs!...........................................................................................................................................!41!
The Justice System and the Legal Profession!.................................................................!42!
Law as a Way to Resolve Conflicting Interests!.......................................................!44!
Precedent – “Llewyn Karl, Excerpt from “The Bramble Bush,” Before the Law,
pp/ 12-13, and 23-34, supra. (notes taken from the Bramble Bush, On our Law
and its Study by Karl Llewellyn)!.............................................................................................!44!
Law and Conflicting Interests,” “Before the Law”, pp. 63-67, supra!.......................!45!
!! Dean Roscoe Pound’s Model of Conflict and the Role of Legal Systems!............!45!
Nader, Laura, “The Case of Spoiled Chiles.”!...............................................................................!46!
Module 2!..................................................................................................................................!48!
1.! Do I have Rights?!.........................................................................................................!48!
a.! Republic v. Sandiganbayan, GR No. 104768, July 21, 2003!................................!48!
2.! Could Morality be legislated?!.................................................................................!51!
b.! Imbong v. Hon. Ochoa, GR No. 204819, April 8, 2014!...........................................!51!
3.! Do you Care for me?!...................................................................................................!63!
c.! Oposa v. Factoran, 224 SCRA 792!.................................................................................!63!
d.! Resident Marine Mammals, GR No. 180771, April 21, 2015!................................!68!
Dispositive Portion: WHEREFORE, the Petitions in G.R. Nos. 180771 and
181527 are GRANTED, Service Contract No. 46 is hereby declared NULL
AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1586.!.........................................................................................!75!
4.! Phillenials All!.................................................................................................................!75!
e.! Disini v. Secretary of Justice, GR Nos. 203335, February 18, 2014 and April
22, 2014 (MR)!..................................................................................................................................!75!
5.! Peace be with you!........................................................................................................!87!
f.! Cruz v. DENR, GR No. 135385, December 6. 2000!...................................................!87!
g.! Province of North Cotabato v. GRP Panel, GR Nos. 183591, October 14, 2008
! 95!
6.! Of Pork and Beans!....................................................................................................!110!
h.! Belgica v. Ochoa, GR Nos. 208566, November 19, 2013!....................................!110!
i.! Araullo v. Hon President Aquino III, GR Nos. 209287, July 1, 2014 and
February 3, 2015 (MR)!...............................................................................................................!121!
MODULE 3!............................................................................................................................!133!
1.! Republic Act No. 9285 (Chapter 2-Mediation)!.........................................................!133!
2.! Implementing Rules and Regulations of RA 9285 (DOJ Circular No. 98,
Chapter 3-Mediation)!.................................................................................................................!136!
3.! Julie McFarlane, Evolution of the New Lawyer: How Lawyers are Resharping
the Practice of Law, 2008. J. Dispute Resolution (2008)!............................................!142!
DAY 1
THE CONCEPT OF LAW
Introduction to the Introduction
1. Kafka, Franz, “Before the Law”, The Trial, reprinted in Before the Law: An
introduction to the Legal Process, 4th ed., 1989 (Bonsignore, J., et. al.):
In this parable, a man wishes to enter a door to the Law. However, a doorkeeper
stands guard and refuses to let him enter. He tries to peek and the doorkeeper laughs at
him and tells him that if he is that tempted to get inside, he may choose to do so, but he
has to remember that the doorkeeper is very powerful, and that from hall to hall there are
also keepers that stand guard, one more powerful than the other. The doorkeeper even
said that there are some aspects which he cannot bear to look at. The man from the
country was surprised, because he thought that the Law should be accessible to every
man at all times. However, when he looked at the doorkeeper in front of him, he decides
that it would be better to wait. Hew as given a stool and he waited in front of the door,
occasionally conversing with the doorkeeper who asks him, impersonally, things about
his home and other matters. At the end of every conversation, however, the doorkeeper
would conclude that he cannot be permitted to enter. The man from the country also
tried to bribe the doorkeeper, parting with all his possessions. The doorkeeper would
accept the gifts but said that it was only to make the man feel that he has accomplished
something. At the start of the wait, he cursed his fate, but later on started only muttering
to himself. As he grew older, and his vision grew dimmer, he saw that there is a radiance
that streams immortally from the door of the Law. As he was dying, his thoughts
condensed into a single question that he has not yet asked of the doorkeeper. He
beckoned to him, and he asked why is it that he was the only one seeking admittance to
the door of Law? The doorkeeper saw that he was at the point of death and so he told
the man: “No one but you could gain admittance through this door, since this door was
intended only for you. I am now going to shut it.”
2. Kafka, Franz, “Dialogue Between a Priest and K,” The Trial. Reprinted in
Before the Law, ibid.
In front of the law there is a doorkeeper. A man from the countryside comes up to the
door and asks for entry. But the doorkeeper says he can’t let him in to the law right now.
The man thinks about this, and then he asks if he’ll be able to go in later. ‘That’s
possible,’ says the doorkeeper, ‘but not at this moment.’ The gateway to the law is open
as it always is, and the doorkeeper has stepped to one side, so the man bends over to
try and see in. When the doorkeeper notices this he laughs and says, ‘If you’re tempted
give it a try, try and go in even though I say you can’t. Careful though: I’m powerful. And
I’m only the lowliest of all the doormen. But there’s a doorkeeper for each of the rooms
and each of them is more powerful than the last. It’s more than I can stand just to look at
the third one.’
The man from the country had not expected difficulties like this, the law was
supposed to be accessible for anyone at any time, he thinks, but now he looks more
closely at the doorkeeper in his fur coat, sees his big hooked nose, his long thin tartar-
beard, and he decides it’s better to wait until he has permission to enter. The doorkeeper
gives him a stool and lets him sit down to one side of the gate. He sits there for days and
years. He tries to be allowed in time and again and tires the doorkeeper with his
requests. The doorkeeper often questions him, asking about where he’s from and many
other things, but these are disinterested questions such as great men ask, and he
always ends up by telling him he still can’t let him in. The man had come well equipped
for his journey, and uses everything, however valuable, to bribe the doorkeeper. He
accepts everything, but as he does so he says, ‘I’ll only accept this so that you don’t
think there’s anything you’ve failed to do’. Over many years, the man watches the
doorkeeper almost without a break. He forgets about the other doormen, and begins to
think this one is the only thing stopping him from gaining access to the law. Over the first
few years he curses his unhappy condition out loud, but later, as he becomes old, he
just grumbles to himself. He becomes senile, and as he has come to know even the
fleas in the doorkeeper’s fur collar over the years that he has been studying him he even
asks them to help him and change the doorkeeper’s mind.
Finally his eyes grow dim, and he no longer knows whether it’s really getting darker
or just his eyes that are deceiving him. But he seems now to see an inextinguishable
light begin to shine from the darkness behind the door. He doesn’t have long to live now.
Just before he dies, he brings together all his experience from all this time into one
question which he has still never put to the doorkeeper. He beckons to him, as he’s no
longer able to raise his stiff body. The doorkeeper has to bend over deeply as the
difference in their sizes has changed very much to the disadvantage of the man. ‘What is
it you want to know now?’ asks the doorkeeper, ‘You’re insatiable.’ ‘Everyone wants
access to the law,’ says the man, ‘how come, over all these years, no-one but me has
asked to be let in?’ The doorkeeper can see the man’s come to his end, his hearing has
faded, and so, so that he can be heard, he shouts to him: ‘Nobody else could have got in
this way, as this entrance was meant only for you. Now I’ll go and close it’.”
The priest then offered various interpretations of the parable, to wit:
1. There are defects in the doorkeeper’s character: the doorkeeper explains about
access to the law, one at the beginning, one at the end. This signified that he is
willing to go beyond his duty in that he offered the man some prospect of being
admitted in the future. There’s no denying he’s a little simple minded.
2. The doorkeeper is actually inferior and subordinate to the man from the country.
The man really is free, he can go wherever he wants, the only thing forbidden to
him is entry into the law and, what’s more, there’s only one man forbidding him to
do so — the doorkeeper. In contrast, the doorkeeper is kept to his post by his
employment. Although he’s in the service of the law he’s only there for this one
entrance, therefore he’s there only in the service of this one man who the door’s
intended for. This is another way in which he’s his subordinate.
3. The story doesn’t give anyone the right to judge the doorkeeper. The man has
come to the law for the first time and the doorkeeper is already there. He’s been
given his position by the law, to doubt his worth would be to doubt the law.
Lifted from FRANZ KAFKA, BEFORE THE LAW CH. 9 (1989).
Points of Reflection and Discussion based on Atty. Villareal’s 2013 Intro to Law Lecture:
The doorkeeper said that he allowed the man from the country to tell all those
stories, to give him so much bribes, etc. so that it cannot be said that the man
from the country did not leave anything undone.
What does it tell you about the law?
“And now, I am going to shut the door.”

It is actually meant for the man from the country. What does it tell you about the law?
-Link to Rule of Recognition (see Hart’s Secondary Rules)
“The law was meant only for you.”

Why Hart’s notion of the law, as made up of the primary and secondary rules, makes
sense? Be sure to connect.
The doorkeeper allowing the man to do all he can, to the point of giving bribes, to
satisfy the person so that he can say he has done everything.
Dworkin discusses the relevance of morality in the law. Looking at that position on the
part of the doorkeeper — allowing bribes and yet, comforting himself with the thought of
giving the man all the chance to be able to enter — what does Dworkin say?
The intermediate rule established as it were by the Hagrid-like creature, that “yes,
I can accept all your offerings but that does not guarantee you to entrance.”
It’s like a condition precedent yet not complete. Is there a moral dimension to that rule? If
yes, what is morality? If there is a moral dimension, give us your legal thesis on integrity
as explained to us by Dworkin?
– Morality is the quality of human acts as to whether they are good or bad, good or
evil. It is a matter of quality. Human acts or those which are deliberate and,
therefore, characterized by an exercise of freedom and marked by responsibility. It
is in contrast with mere acts of man, like snoring while you are sleeping.
“I am going to shut the door and yet, this was meant for you.”
What does it tell you about the law?
– Concept of justice: You render unto a person what is due to him/her. So, can you
say that the system that governs that door was unjust? If it is unjust, then, why is it
called the law?
3. Kafka, Franz, “The Problem of Our Laws” and “Couriers”, The Trial,
reprinted in Before the Law, ibid.
The problem of our Laws

In the parable “The Problem of Our Laws”, Kafka shows a society ruled by the law
whose content is unknown. For a very long time, the people were interpreting the law,
and such interpretations acquire the status of the law. Kafka repeatedly said in the
parable that the laws, from the beginning, were made to the benefit of the nobles. In the
latter part, Kafka said that the law is whatever the nobles do. The people were not
resisting the nobility. However, Kafka also said that there is still a possible freedom of
interpretation albeit restricted.
Couriers
Men were given a choice to become kings or the couriers of kings; they all wanted to be
couriers. Since there are no kings, the messages they are shouting to each other have
become meaningless. They would like to end it, but they cannot because of their oaths
of service
The Concept of Law
1. What is the Law?

“An ordinance of reason for the common good, made by him who has care of the
community, and promulgated.” (S.T.I.II, Q. 90, Art. 4); The whole system or set of rules
made by the government of a town, state, country, etc.
2. Kinds of Laws
According to Aquinas, there are four (4) kinds of (true) law:
(a) Eternal Law - the will of God governing the motions of the universe and is “law”
in its widest significance comprising “natural laws” as understood by scientists as
well as philosophers and lawyers. Briefly, it is the eternal plan for the world, the
very idea of the government of things.
(b) Natural Law (Lex Naturalis) – law of reason promulgated by God in man’s
nature (thus, immutable), whereby he can discern how he should act; stated
otherwise – it is the human participation in the Lex Aeterna discovered through
reason; includes the observable order of the universe.
(c) Divine Law (Lex Divina) - Scriptural Revelation by which man is directed to
perform his proper acts in view of his last end, which is God; this partially reveals,
to the extent determined by the Creator, the Eternal Law. In short, it is the divine
revelation, revealed to us by the people of God.
(d) Human Positive Law (Lex Humana)- man-made law, but necessarily derives its
moral authority from concordance with Eternal Law as from time to time revealed
through Divine Law or made perceptible through Natural Law.
3. Kinds of Human (Public) Law:

a. Constitutional Law: fundamental law of the land which defined the powers of the
government; highest law of the land
b. Administrative Law: fixes the organization and determines the competence of the
administrative authorities. It also regulates the methods by which the functions of
the government are performed.
c. International Law: rules that regulate the community of nations; Traditionally,

international law consisted of rules and principles governing the relations and
dealings of nations with each other, though recently, the scope of international
law has been redefined to include relations between states and individuals, and
relations between international organizations. (Lifted From Cornell.edu)
4. Moral Law- a “species” of Natural Law; Law and Morality

Though law and morality are not the same, and many things may be immoral which
are not necessarily illegal, yet the absolute divorce of law from morality would be of
fatal consequence; and such divorce would follow if the temptation to murder in this
case were to be held by law an absolute defence of it. It is not so. (See Queens
Case)
5. Natural Law v. Positive Law
In Western Tradition, two main approaches to the question of the nature of law: The
Natural Law Theory and Legal Positivism (denies the existence of connection between
law and morality)
I. Natural Law Theory

o Claims that there is a necessary connection between natural law and the legal
rules laid down by the state called the “positive law.”
o Its account of morality is that there is a universally valid principle of right and
wrong and that these principles are rooted on the nature of things and knowable
by human reason. (e.g. murder is wrong)
o Universally valid principles of right and wrong are called “natural law.”
o What is the nature of the connection?
o (There are 3 versions of natural law theory)
6. Law as the Union of Primary and Secondary Rules (See Hart)
7. International Law (See Hart)
Read:
1. Rice, Charles, 50 Questions on the Natural Law

Aquinas most significant philosophical achievement: his successful integration of
Christian Theology and Aristotelian Philosophy. Saint Thomas understood and affirmed
that the world is not a product of chance. Rather, it was created by a loving God whose
existence and attributes we can demonstrate.
Aquinas definition of law: an ordinance of reason for the common good, made by him
who has care of the community, and promulgated,
4 Kinds of Law According to Aquinas (see above)
In summary, Saint Thomas places the human law within the context of the
Natural Law and places them both within the overall design of God, the “Chief Governor”
Eternal Law
Divine Law________
Natural Law
Human Law
Is the Law the same for everybody? Does everybody know what it requires? Can it
be changed?
The natural law cannot be changed in its essentials. It does not vary according to
time, but remains unchangeable. But it can change by way of addition only. It can be
changed by extension, by new applications, as experience brings new situations and
circumstances. Such change is not intrinsic to Natural Law but only in how it is used.
The natural law, in sum, provides an objective, knowable standard that is as old
as human nature but ever adaptable to new and changing situations.
How does law enacted by the state – the human law – relate to the natural law?
The Human Law, an integral part of God’s plan, is designed to promote the common
good and help man attain his highest end of happiness with God.
• The Human Law is derived from Natural Law.
The Natural Law has two functions with respect to human law:
• Constructive – provides a guide in the formulation of laws
• Protective – provides a shield against laws that violate natural laws; criticizes
human law
What is the “common good” that the human law is supposed to promote?
Shouldn’t the focus be on individuals and their rights?
During the Enlightenment, the purpose of the law was to answer to utilitarian
criteria: the greatest good for the greatest number. Saint Thomas does not agree with
this for he believed that there is a common good that is more than merely the total of
individual goods.
Saint Thomas quotes Saint Isidore of Seville “laws are enacted for no private
profit, but for the common benefit of the citizens.” The human law cannot rightly be
directed toward the merely private welfare of one or some of the members of the
community. It is also wrong to direct it only to the present generation. Saint Thomas says
“laws should be made to suit the majority of instances; and they are not framed
according to what may possibly happen in an individual case.”
Incidentally, the common good is Saint Thomas’ basis for his justification of
capital punishment by saying “the common good is better than the particular good of one
person. The particular good should be removed in order to preserve the common good.
… Therefore, the ruler of the state executes pestiferous men justly and sinlessly in order
that the peace of the state may not be disrupted.” The wicked must be clearly
distinguished.
Lifted from: PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE (From Ancient

Times to the 21st Century) by Atty. Eugenio H. Villareal; Required reading: Rice,
Charles, 50 Questions on the Natural Law, pp. 43-62, 1993 ed.
2. Queen v. Dudley & Stephens, 14 QBD 273 (1884).
Short summary of facts: Thomas Dudley and Edwin Stephens were aboard an open boat
together with a young boy named Parker between seventeen and eighteen. They were
cast away because of a storm in the high seas without food for seven days and without
water for five. Dudley proposed that they draw lots to decide who should be killed so the
other two could live off of eating his flesh. Dudley and Stephens decided to just kill the
boy and they fed on his flesh for four days. At that time, there was no reasonable
prospect of relief and there was no other sail in sight. Due to this, Dudley and Stephens
believed that if they did not do this, they would die of starvation. The court held that
Dudley and Stephens are still guilty of murder because there was no proof presented to
show that killing of the boy was justified under the law.
Arguments:
Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Dankwerts with him), appeared
for the Crown.
The act of killing someone can only be justified when there is self-defense or if
the killer does it to prevent the deceased from committing some great crime
against another person. This cannot be applied to the case at bar because the
defendants were not protecting themselves from Parker.
A. Collins, Q.C., for the prisoners.

Parker was killed under the pressure of necessity. This would excuse an act
which would otherwise be a crime. An opinion is expressed that in the case often put by
casuists, of two drowning men on a plank large enough to support one only, and one
thrusting the other off, the survivor could not be subjected to legal punishment. In the
American case of The United States v. Holmes, the proposition that a passenger on
board a vessel may be thrown overboard to save the others is sanctioned. The only
intent of the defendants in this case was to preserve their lives.
Issue: Whether Dudley or Stephens are guilty of Murder
Held: Guilty. Sentenced to death with recommendation for clemency.
Although it is evident that Dudley and Stevens believed that they needed to kill Parker to
save themselves, it cannot be denied that they killed an innocent and weak boy to save
their lives, depriving him of the possibility of survival. It should be noted, however, that
there was no assurance that they will be picked up the next day, or at all, in which case,
the killing would have been an unnecessary and profitless act.
The rule is that when one deliberately kills another, as in this case, it is murder, unless it
can be justified by a well-recognized excuse admitted by law. In this case, there was
none.
The necessity claimed to be present in this case is not the one permitted by law. Though
law and morality are not the same, and many things may be immoral which are not
necessarily illegal, yet the absolute divorce of law from morality would be of fatal
consequence; and such divorce would follow if the temptation to murder in this case
were to be held by law an absolute defence of it. It is not so.
To preserve one’s life is generally speaking a duty, but it may be the plainest and the
highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live,
but to die It is not correct, therefore, to say that there is any absolute or unqualified
necessity to preserve one’s life. “Necesse est ut eam, non ut vivam,” is a saying of a
Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on
necessity to which so much reference has been made.
In these kinds of cases, Who is to be the judge of what is necessary? By what measure
is the comparative value of lives to be measured? Is it to be strength, or intellect? It is
plain that the principle leaves to him who is to profit by it to determine the necessity
which will justify him in deliberately taking another’s life to save his own. In this case the
weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill
him than one of the grown men? The answer must be “No”.
On clemency:
“So spake the Fiend, and with necessity,
The tyrant’s plea, excused his devilish deeds.”
It is not suggested that in this particular case the deeds were devilish, but it is quite plain
that such a principle once admitted might be made the legal cloak for unbridled passion
and atrocious crime. There is no safe path for judges to tread but to ascertain the law to
the best of their ability and to declare it according to their judgment; and if in any case
the law appears to be too severe on individuals, to leave it to the Sovereign to exercise
that prerogative of mercy which the Constitution has intrusted to the hands fittest to
dispense it.
3. Altman, A., “Law and Morality”, Arguing about the Law, pp/ 40-78, 2nd ed.,
2001.
In Western Tradition, two main approaches to the question of the nature of law: The
Natural Law Theory and Legal Positivism (denies the existence of connection between
law and morality)
I. Natural Law Theory

– Claims that there is a necessary connection between natural law and the
legal rules laid down by the state called the “positive law.”
Its account of morality is that there is a universally valid principle of right and
wrong and that these principles are rooted on the nature of things and knowable
by human reason. (e.g. murder is wrong)
Universally valid principles of right and wrong are called “natural law.”
What is the nature of the connection?

(There are 3 versions of natural law theory)
Traditional Natural law (Aquinas)

o Rule of positive law that is in conflict with natural law are invalid, thus, legally null
and void and carry no legal authority.
o According to St. Augustine: “A law that is not just is not a law.”
o Traditional Natural
o Law Theory: Background
o Natural Law Principle: The principles of right and wrong are built into the nature
of things and that these principles can be discovered by human reason.
o Previously, the laws of the state were sacred and beyond all criticism but the
ancient philosophers rejected such dogma and claimed that the rules of positive
law were subject to evaluation on the basis of the principles of natural law. These
principles represented a “higher law” by which the goodness or badness of
positive law can be determined.
o Natural law is not just a set of standards to judge goodness or badness of
the rules laid down by the state. It was a set of standards that must be
met for any rule to have legal authority. Unless it met those standards, a
rule is null and void.
o Its proponents include Aquinas and St. Augustine in the Middle Ages, William
Blackstone in the eighteenth century, German legal philosopher Gustav
Radbruch, etc.
Aquinas Theory of Law
o Aquinas has a vision of the universe governed by a single, self-consistent, and

overarching system of law. The entire system is under the direction and authority
of the supreme lawgiver and judge, God, human law occupying the lower tier of
the system. Above human law is the eternal, natural and divine law.
o Natural law consists of those principles of eternal law specific to human beings
knowable by our power of reason and guiding us towards what is good for
humans. The principles of natural law help us reach the good that is achievable
in this world.
o If a positive law mandates an action that is contrary to natural law, Aquinas cites
Augustine’s thesis and claims that “…But if in any point it (positive law) deflects
from the law of nature, it is no longer a law but a perversion of law.” An unjust
rule cannot create any obligation to obey its terms.
o To Aquinas, the purpose of human law is to promote the common good of the
members of the political community. The common good are not promoted
however by rules that go contrary to natural law.
II. Inner Morality of the Law (Lon Fuller)
“Fidelity” version (Lon Fuller)

It does not claim that the rules of positive law must be consistent with natural law
principles in order to have legal validity. Rather it claims that a moral reason exist to
obey the rules of any system of positive law. Morality tells us to be faithful to the positive
law unless outweighed by weightier moral reasons for disobeying the law.
Lon Fuller believes that any system of law necessarily abides by certain moral
principles called the "inner morality of the law". These principles include the idea that
while laws are intended to regulate conduct, they are primarily addressed to humans
capable of deliberation and choice. Hence, laws must be applied prospectively since
only prospective rules, as opposed to retroactive, address humans as agents capable of
choice. A system of regulation and control is not a system of law unless these principles
are satisfied.
Laws respecting humans as agents capable of choice, represent an inner morality
that is part of any genuine legal system. Since such laws embody respect to humans,
there is always a moral reason for us to obey the rules. The inner morality of the laws in
the end, guarantee that there is a valid moral reason to obey the rules of any system of
genuine law simply in virtue of their belonging to such system.
However, assessing the theory of Fuller, some critics think thatsome laws may be
so oppressive that there is no moral reason whatsoever to be faithful to them, ie.
Nuremburg laws prohibiting marriage and sexual intercoursebetween Jewsand
Germans. Fuller would however, claim that the Nazi Germany had a system of terror
instead of law
Fuller further elaborted the connection of positive law and modality in such a way
that rules should be interpreted so as to promote social purposes behind the rules of
positive law. However, this again was criticized since interpreting laws based on their
underlying purpose does not necessarily promote what is morally good (ie. Slavery and
condemnation of Jews.)
III. Dworkin’s Interpretive Theory

Rules and Principles: The Idea of Fit
Ronald Dworkin believes that proper legal interpretation requires making of moral
judgments.
• It contemplates that morality will exercise significant influence and will thereby be
intertwined with positive law.
• The law includes more than those rules that are authoritative (statutory codes,
judicial decisions, official documents).
• Authoritative rules should be considered not as some miscellaneous collection of
norms or products of power politics but as an expression of underlying
philosophy of government.
• Philosophy consists of moral principles specifying the fundamental purposes of
government and the proper relation between government and individual.
• Law consists of rules and best moral principles (moral rights of individual, rights
to be respected and protected by the government) which serve as guides for
legal decisions and interpretation of legal rules.
How does one determine which are the best moral principles that can be seen as lying
behind the rules explicitly adopted by the political community?
Dworkin’s answer: “One must judge the degree of “fit.”
Two aspects of Fit

1. Fit as a matter of logical consistency
• any viable candidate for an underlying principle must be logically consistent with
most of the rules
• total consistency is not required
• unless there is a high degree of consistency, it will not be plausible to think that
the rules of a certain legal system are an expression of philosophy of government
in question
2. Fit as the power to help provide a rationale
• an underlying principle must help to justify or provide a rationale the rules
Fitting the Fourth Amendment: Privacy

• The Fourth Amendment guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures by government.
• Dworkin’s method of interpretation wants us to determine which moral principle
fits this constitutional rule against unreasonable searches and seizures
– Look for a principle that is logically consistent with the rule
– A principle stating that the government should do whatever it regards as
useful in detecting and punishing a criminal activity does not fit the rule
– A rule must restrict what the government may do
• A principle that mandates the protection of privacy fits the bill
– People have a moral right to privacy in their homes and this right helps
provide the rationale for the Fourth Amendment rule
– The Fourth amendment allows crimes to be effectively prosecuted while at
the same time protecting to a significant degree the right to privacy
– Privacy includes control over information concerning one’s life including
information that can be used to harm others
– The informational aspect of the right to privacy helps provide a further
rationale for the Fourth amendment rule
– It allows effective law investigators to proceed while at the same time
protecting to a significant degree this second aspect of privacy
Olmstead and Beyond

Olmstead vs. United States illustrates Dworkin’s approach.
• This case involved wiretapping of a suspected criminal’s telephone by the
government
• Since wiretapping is unknown, the government back then collected evidence
from a person’s home by physically entering the property and taking what it found
there
• Thus, the Amendment speaks of searches and seizures, acts of physical
intrusion, and confiscation. The Supreme Court held in Olmstead that
wiretapping was not an act of physical intrusion and confiscation so no search
warrant is needed
• Dworkin would look to a moral principle that fits the Fourth Amendment and we
cannot simply say that wiretapping is excluded
• The analysis of privacy maintains two aspects:
o Physical space aspect
o Informational aspect
• Olmsted ignores the informational aspect. Wiretaps are informational invasion.
• Dworkin’s method promotes the two aspect of privacy. Thus, wiretapping without
probable cause is a violation of the Fourth Amendment
• The concept of privacy may differ from one interpretation to another. This reflects
the different moral and political viewpoints people have including differences in
their philosophy of government and society
The Role of Morality

The principle on which legal decisions should be made is the one from among those that
fit the explicit legal rules, that is morally best.
• For Dworkin, the law consists of the rules explicitly adopted by the political
community plus the best principles that fit those rules.
• Best means “morally best.”
• By looking to the best principles that fit the explicit rules, we come up with an
answer that the explicit rules themselves fail to provide.
• Each person must decide what is morally best.
• A judge which follows Dworkin’s method of legal interpretation will make a good
faith effort to determine what is morally best. For Dworkin, that judge is fully
authorized to make her legal decision on the basis of what she regards as the
correct moral judgment.
Law has integrity - the law consists of the rules the community has authoritatively
decided to adopt plus the best moral principles that fit those rules. It also helps raise law
into the moral domain. For Dworkin, “might does not make right, but neither does it make
law.”
The Challenge of Skepticism

Dworkin is well aware that his method of interpretation invites significant disagreement
over the best interpretation of the law; this might invite a deep skepticism about the law.
Two Distinct types of Skepticism

1. External Skepticism
• Holds that there is nothing objective in the world that can make a statement
about our moral obligations true or false.
• It can be understood as arguing that questions about moral obligations have no
right answer because nothing in the empirical world makes them true or false.
From this perspective, it would be a mistake to make legal questions depending
on the answers to moral questions for that would imply legal questions have no
right answers either.
• Dworkin counters by claiming that it rests on the false premise that moral
judgments must correspond to perceivable facts to assert that some judgments
are right or wrong. It is equally wrong to think that disagreement over moral
obligations require some empirical method for resolving them.
• Making moral judgments is a practice with its own standards of good reasoning
and should not be confused with the practice of making empirical judgments.
• Criticisms:
– Dworkin fails to come to grips with the fact that there are many different
ways of conducting moral arguments.
– External skepticism need not rest its “no right answer” thesis on the failure
of moral judgments to correspond to any empirical facts. Rather, it can rest
its case on the conflicting modes of oral argument and that there is no way
to establish which mode is correct.
2. Internal Skepticism
The best moral principles may be insufficient to give the law integrity that raises it
out of the domain of mere politics.
• Our legal system is fundamentally unjust and oppressive: the system promotes
the interests of the wealthy and privileged at the expense of the rest of society
• The law has no integrity: it is strictly “a matter of might and not of right.”
Assessing Dworkin
" Dworkin’s interpretive version of natural law theory seems to be the strongest of
those considered.
" His theory does not hold that unjust rules are invalid as laws.
" It does not hold that the principles of legality are by themselves sufficient to create a
prima facie moral obligation to obey the rules of any system of positive law.
" Dworkin locates the source of moral force in the integrity of law. The inner morality
of law is more extensive; it consists not only of the principles of legality but of the
best moral principles that underlie the settled law.
" Decisions in hard cases require moral judgments. It does not follow that judges are
authorized to decide a case on the basis of their own moral judgments or that the
correct moral judgments determine the correct legal answers.
" Alternative: judges must defer to judgments that are widely accepted in society. It is
society’s moral judgment that determines the right legal answer in a hard case.
" Integrity does not guarantee the justice of law but it does guarantee that morality
determines to some degree what the law is.
5. Natural Law vs. Positive Law
(Legal Positivism) Austin’s Theory of Law
Law as command: Laws are general commands laid down by superiors to guide the
actions of those under them.
- Laws are “rules” laid down by superiors to guide the actions of those under them.
▫ Rules are species of command.
! Rules impose obligations on those to whom they are addressed
! Being under an obligation means a person is liable to have
undesirable consequences when acting contrary to a command.
▫ Commands may either require general or specific action.
! General – Drink milk everyday.
! Specific – Drink milk now.
- Law is a general command.
▫ General commands impose continuing obligations to act in certain ways.
! When laid down by God: Such rules constitute divine law, impose
moral obligations, and acts contrary thereto make one liable to
punishment in the hands of God.
! When laid down by political rulers: Constitute positive law, impose
legal obligations, and acts contrary thereto make one liable to
punishment in the hands of political rulers.
- Positive law consists of general commands laid down and enforced by political
rulers, or more specifically, sovereigns of an independent political society.
▫ Sovereign
! The supreme power whose commands are generally obeyed/
Does not obey any earthly power
! Must be defined solely in terms of power and not in terms of
justice
! Does not have any moral qualification necessarily attached to it
- There are laws not imposed by political rulers. Austin places them under the
category of “positive morality,” that is, those informal standards of behavior that
society expect individuals to abide by (i.e. “Give help to those in need.”)
- Consequences of Austin’s theory:
1. There arises a DISTINCTION as between whether a rule is part of
positive law (What is the law?) and whether such rule is good or just
(What ought the law be?).
2. There is NO NECESSARY CONNECTION between legal and moral
obligation. These are purely power concepts, and are not in any respect
moral ones.
! Whether a general command imposes a legal obligation depends
on who issues and threatens to enforce it. The fact that a
command is issued by a sovereign does not necessarily impose a
moral obligation to obey.
! The source of legal obligations is only the earthly sovereign, and
having such obligation to the sovereign simply means one is liable
to the sovereign for acting contrary to the sovereign’s commands.
- Traditional law view is an abuse of language and is mischievous.
▫ Abuse of language
! The idea that human laws are not being obeyed because they
conflict with Divine law is nonsense, and such will only result to
the judicial system demonstrating the inconclusiveness of such
thinking by inflicting punishment.
▫ Mischievous
! Advocating the nullity of unjust laws is to preach anarchy.
! Austin does not claim the complete disconnect between positive

law and morality. He is simply saying that moral obligations must
not be confused with legal obligations.
- In the international law scene, Austin rejects the idea that international law is
properly understood as law because the absence of a global sovereign to issue
and enforce commands amount merely to a positive morality without any legal
obligation.
▫ Nuremberg defendants used the Austinian theory to assert their legal
innocence - the obligation of the individual is to obey the dictates of the
sovereign, notwithstanding international or natural law.
Assessing Austin
Clear and systematic approach but generally unpersuasive
- Pros
▫ Austin’s approach is clear and systematic in explaining and distinguishing
the phenomenon of law.
- Cons
▫ The conclusion that laws enforced by courts are valid and genuine avoids
the question of natural law theorists: Are those rules enforced by courts
valid? Are they contrary to natural law? If the answer is yes, Austin
provides no reasoned argument.
▫ The judicial system, by punishing a person as per dictates of enforcement
of a rule, will not disabuse someone of the notion that an unjust law is not
a genuine law.
▫ The idea that traditional natural law invites anarchy is to judge the nature
of the law by the practical consequences of having it adopted in society.
! In fact, the social progress that could be achieved by the rejection
of unjust laws may outweigh the possible social disorder.
- Consider however the difference in the times by which the two theories are
formulated. Natural law theory was developed in a medieval society, where there
was but one dominating church and a single value system. The positive law
theory of Austin was developed in a modern society where there is a
fragmentation into competing creeds and conflicting ideas of morality.
Also, Austin’s theory still presumes that Divine Law covers human actions. In the context
of differences in religious beliefs, there will be conflicts as to when divine law requires
disobedience to the general commands of the sovereign.
6. Law as the Union of Primary and Secondary Rules
(Legal Positivism) Hart’s Primary and Secondary Rules
Hart posits the idea of power-conferring rules that empower individuals rather
than prohibit or require them to do something.
- Power conferring rules: Certain types of rules cannot be understood as
commands. The idea of law as a system of commands fits well into rules of
criminal law where the end is to penalize the violators, but there are rules
different in nature in that they neither prohibit nor require, but empower
individuals to do things that would otherwise be impossible for them to do (i.e.
enter into leally bind agreements, as in contract law).
▫ Command – alters world by requiring someone to do something
▫ Power-conferring rule – alters world by empowering someone to do things
they would not otherwise be able to do.
- Power-conferring rules not only empower public and private individuals, but also
give judges the power to interpret and apply the law, legislators to make and alter
it, and executive officials the power to enforce it.
- Furthermore, both commands and power conferring rules issue from sovereign,
although the latter are more of declarations, rather than commands. The
distinction between the two does not detract from the idea that both can be
explained in terms of the power of a political sovereign.
LEGAL OBLIGATION (GOVERNMENT AND GUNMAN)

The mere fact that there are consequences in non-compliance does not make for a legal
obligation.
- Because Austin’s theory proposes that having a legal obligation means standing
under some general command and risking sanctions upon failure in compliance
(your money, your life situation), such conception of law makes a government no
different from a gunman.
▫ A gunman creates a situation where one suffers consequences for non-
compliance with an order, although no legal obligation is created. The
victim may be forced to hand over money, but is no way obligated to do it.
As such, Hart distinguished between being obliged to do something and
being obligated to do something.
▫ Obliged to do something
! It is often a statement about the beliefs and motives with which an
action is done: B was obliged to hand over his money may simply
mean, as it does in the gunman case, that he believed that some
harm or other unpleasant consequences would befall him if he did
not hand it over and he handed it over to avoid those
consequences.
! We will not think of B as obliged to hand over the money if the
threatened harm was trivial in comparison with the disadvantage
or serious consequences. Nor perhaps should we say that B was
obliged, if there were no reasonable grounds for thinking that A
could or would probably implement his threat of relatively serious
harm.
▫ Had an obligation to do it
! Facts about beliefs and motives are not necessary for the truth of
a statement that a person had an obligation to do something.
! Thus, the statement that a person had an obligation, e.g. to tell the
truth or report for military service, remains true even if he believed
(reasonably or unreasonably) that he would never be found out
and had nothing to fear from disobedience.
- Predictive Interpretation
▫ Some theorists, Austin among them, treat statements of obligation not as
psychological statements but as predictions or assessments of chances
of incurring punishment or 'evil'.
▫ It is crucial for the understanding of the idea of obligation to see that in
individual cases the statement that a person has an obligation under
some rule and the prediction that he is likely to suffer for disobedience
may diverge. It is clear that obligation is not to be found in the gunman
situation, though the simpler notion of being obliged to do something may
well be defined in the elements present there.
- Hart explains the idea of obligation in terms of the idea of a rule. A rule exists
when people generally:
▫ Act in a certain way (external condition)
▫ Regard deviations from acting in a certain way as something to be
criticized. (internal condition because it involves the attitude people take)
▫ There is an obligation upon a person when a rule applies to him or her.
There must be pressure to conform, and the rule must help maintain an
aspect of society that is regarded as important and valuable, and may
even require persons to act contrary to their individual interests.
- Rules are conceived and spoken of as imposing obligations when the general
demand for conformity is insistent and the social pressure brought to bear upon
those who deviate or threaten to deviate is great.
PRIMARY AND SECONDARY RULES

A legal system is one that brings together both primary and secondary rules.
Primary Rules
• Rule-imposing obligations
• Impose duties
• Concern actions involving physical movement or changes
The Defects
It is plain that only a small community closely knit by ties of kinship, common sentiment,
and belief, and placed in a stable environment could live successfully by such a regime
of unofficial rules.
1. Uncertainty. The rules by which the group lives will not form a system, but will
simply be a set of separate standards, without any identifying or common mark,
except of course that they are the rules which a particular group of human beings
accepts. They will in this respect resemble our own rules of etiquette.
o Hence, if doubts arise as to what the rules are or as to the precise scope of
some given rule, there will be no procedure for settling this doubt, either by
reference to an authoritative text or to an official whose declarations on this
point are authoritative.
2. Static character of the rules. The only mode of change in the rules known to such
a society will be the slow process of growth, whereby courses of conduct once
thought optional become first habitual or usual, and then obligatory, and the
converse process of decay, when deviations, once severely dealt with, are first
tolerated and then pass unnoticed. There will be no means, in such a society, of
deliberately adapting the rules to changing circumstances, either by eliminating
old rules or introducing new ones.
3. Inefficiency. The third defect is the inefficiency of the diffuse social pressure by
which the rules are maintained.
– Disputes as to whether an admitted rule has or has not been violated will
always occur and will, in any but the smallest societies, continue interminably,
if there is no agency specially empowered to ascertain finally, and
authoritatively, the fact of violation.
The Remedies (Secondary Rules)

• Rules which could not exist unless there are other kinds of rules, namely, that
which impose obligations or primary rules.
• The remedy for each of these three main defects in this simplest form of social
structure consists in supplementing the primary rules of obligation with secondary
rules which are rules of a different kind.
• The THREE SPECIAL KINDS are as follows:
1. Rule of Recognition: Rules that single out the rules that actually impose
obligation in a society, and such help people recognize the rules under
which they will be officially held accountable. These rules singled out by
the rule of recognition are the legally valid rules of that society.
- Significance: Diminish uncertainty over what the obligations of
people in the society are.
2. Rules of Change. Rules that specify how the legally valid rules can be
changed.
- Significance: Help society adapt to changing condition by
changing old rules and enact new ones.
3. Rules of Adjudication: Rules that empower specific individuals to enforce
and apply society’s legally valid rules. Besides identifying the individuals
who are to adjudicate, such rules will also define the procedure to be
followed.
- Significance: Ensure more effectively the meeting of obligations.
• In any functioning legal system, people must generally comply with legally valid
primary rules and public officials must accept the secondary rules and the
primary rules identified by the rule of recognition.
• People then will generally view primary rules as commands backed by threat of
force, but they will not regard violations as something to be criticized. Only in an
extreme situation would primary rules be complied with solely out of fear of
consequences and even then, it can still count as a genuine legal system.
• The existence of a legal system is a matter of degree (as opposed to an all-or-
nothing affair), although the absence of secondary rules still seems to be a large
gap. In the Nuremberg trials, Hart would argue that the trials of said defendants
are the best possible way to promote the establishment of an international rule of
law.
Assessing Hart
- Hart’s account is not essentially different from that of Austin’s. While the former
criticizes the latter for the absence of a clear distinction between the laws of a
government from that of the coercive demands of a gunman, Hart fails in the
same aspect when he painted his extreme case scenario in which the people
comply with the legally valid primary rules solely out of fear.
- Natural law theorists would say that Hart’s criticism is sound, and the only way
out of the dilemma is for Hart to admit the inadequacy of his own theory.
Furthermore, Hart’s distinction between a government and a gunman can only be
maintained if Hart gives up on the positivist separation of positive law and
morality.
▫ However, Hart can escape such dilemma without having to give up on the
positivist separation between positive law and morality. The key is to
distinguish between a government under the rule of law from an arbitrary
government that uses law to control society as it pleases.
- Both Hart and Austin posit that positive law stems from the exercise of power by
some human agency in society and moral considerations do not regulate and
control that agency in its exercise of power.
▫ Hart and Austin differ in their response over the question of whether legal
considerations regulate and control the source of positive law:
! Hart’s is positive – rules of positive law empower specific
individuals make, enforce, and apply law, and direct individuals as
to how tasks are to be carried out.
! Austin’s is negative – source of law is a sovereign standing above
all rules of positive law.
- On Hart’s argument that his system of primary and secondary rules can impose
legal obligations as compared to an Austinian sovereign who cannot impose any
obligations at all:
▫ Hart uses the idea of legal obligation to differentiate between
governments operating under secondary rules and gunmen/arbitrary
governments. However, the question is whether Hart has drawn the line
of distinction in the right place.
▫ Positivist critics claim that it does not matter if the sovereign exercises the
power justly or unjustly – the only question is whether the sovereign has
the power to rule society.
- Hart never really explains why the existence of a legal obligation depends not
simply on whose power is imposing it but on how that power is being exercised.
▫ Hart does not accept Fuller’s answer that genuine legal obligations have
prima facie moral force.
▫ Fuller further contends that a government abiding by his inner morality
creates a prima facie moral obligation to obey its laws, while Hart resists
the conclusion that a government ruling through a system of primary and
secondary rules necessarily creates such obligation.
- Hart’s rejection of Fuller’s argument by taking the positivist view of separating
between law and morality gives rise to the question as to why an Austinian
sovereign cannot impose legal obligations with commands and declarations.
- Hart might insist on the good reasons to distinguish between Austinian
sovereigns and governments that operate through secondary and primary rules.
But the question remains as to why the distinction must be drawn in terms of the
idea of legal obligation. It is possible to agree on the differences without claiming
that the Austinian sovereign cannot impose obligations.
Summary: Natural Law Versus Positivism

- The dividing line between positivism and natural law theory runs right through the
concept of legal obligation and the underlying moral force or dimension to any
genuine legal obligation.
- Positivists will insist on separating between law and morality, arguing that the
idea of law and legal obligation can be explained in terms of power, coercion,
control, and rules.
- Natural law thinkers will argue on the necessary connection because the ideas of
power, coercion, control, and rules cannot adequately explain the nature of a
legal obligation – moral right and wrong are essential ingredients as well.
7. International Law
HART’S INTERNATIONAL LAW
In this article, Hart discuss the dilemma of identifying international law as “law,” in the
sense of a system where primary and secondary rules are joined.
• Hart first discusses how law has been conceptualized (as distinguished from
defined) as a system of primary and secondary rules. Municipal law, specifically,
lives up to this concept.
- He states that international law—that system of rules governing States and
non-State entities and their relationships with each other—does not fit into
this concept of law.
- International law seems to consist only of the primary rules of obligations, due
to the absence of a) courts with compulsory jurisdiction and b) centrally
organized sanctions, both of which are present in municipal systems.
• He states that international law lacks a unifying rule of recognition specifying the
‘sources’ of law and providing criteria for the identification of its rules. This rule of
recognition is also important in determining how international law can give rise to
obligations by which States (and non-States) bind themselves.
In short, his question is, “Is international law, law, based on what we know about
municipal law (and the union of primary and secondary rules)?” Hart tries to answer by
outlining four “doubts” discussed by jurists with regard to the status of international law.
HART’S FOUR DOUBTS RE: STATUS OF INTERNATIONAL LAW:
a. Is international law, law, even though there is an absence of sanctions to

enforce obligations?
a. First: a clarification on the term “binding.”

- For Hart, a rule is binding when it is a valid rule, and under it a person
in question has some obligation or duty.
- Any question on what makes a rule binding, however, only covers its
scope or applicability to given circumstances, to particular persons or
transactions. In short, asking the “is international law binding?”
question is a limited, narrow way of looking at the problem. Therefore,
for Hart, the right question to be asked is: “Can such [binding] rules as
these be meaningfully and truthfully give rise to obligations?”
b. Hart says there have been doubts about the capacity of international law
to give rise to obligations because of the absence of centrally organized
sanctions. Hart has a problem with this because:
- An acceptance of this argument essentially means an acceptance of
the view that law is essentially a matter of orders backed by threats.
- This view distorts or negates the role played of obligation and duty in
all legal thought.
c. He discusses another argument related to argument (b): that in municipal
law, there are provisions deemed necessary (i.e., primary rules, akin to
the prohibition against the use of violence, etc.) in order to enforce
organized sanctions, and these provisions are absent in international law.
Hart answers by saying that the premise of this argument is flawed,
because municipal and international law are different by way of their
factual backgrounds, settings, and contexts.
- Municipal law is set against the background of human beings and
their environment. In a society of individuals, naturally, physical
sanctions are necessary, and possible, because human beings are
approximately equal in physical strength and vulnerability. The use of
sanctions is therefore successful as a deterrent for violations.
- However, aggression between States, as opposed to individuals, is
very different. Aggressions between States are public. These
aggressions involve huge risks because of the inequality of States.
Moreover, the presence of sanctions in an international law context,
arguably, may do little as deterrents.
For Hart, because of the reasons above, international law has developed
differently from municipal law. Thus, it is unreasonable to deduce that the
arguments above are enough to strip international law the title of “law.”
b. Is international law, law, despite the principle of sovereignty of States (that

is, their capacity to be independent and be bound by their own rules)?
a. First: a clarification on the idea that States are absolutely sovereign. For
Hart, a State may be sovereign but may also be bound by obligations in
international law.
- The word sovereign means no more than ‘independent,’ and is
negative in force. It is a limitation to the control that a State may be
subjected to; sovereignty is that area of conduct where a State is
autonomous.
- The question therefore, in municipal law, is: to what extent does it
exercise its legislative authority? In international law, it is: what is the
maximum area of autonomy which its rules allow to States?
b. Second: Most jurists invert the order in which the questions above are
asked, says Hart. One must first determine and know the extent and
forms of international law, before the scope of a State’s sovereignty can
be ascertained.
- This argument is related to the ‘voluntarist’ or ‘auto-limitation’ theories
of international law, which State that all international obligations are -
self-imposed, like an obligation arising from a promise, similar to the
social contract theory in political science. Hart disproves this theory by
saying:
• Nothing supports this theory except for that fact that it has often
been repeated.
• To say that States can be bound only by obligations they impose
upon themselves is incoherent, for this presupposes that there is
an underlying rule that States are bound to do what they bind
themselves to do under a written agreement, etc. In short, this
idea presupposes that the obligatory status of a self-imposing rule
comes from another rule that is self-imposed. The idea is absurd
(and redundant), if one is to argue that States are free to from
rules, in accordance with its sovereignty.
• To say that international agreements can only arise by tacit
consent (e.g., treaties) is largely debatable. Here, Hart
enumerates a few exceptions to disprove this point. One
exception is in the case of a new State, and another is that of a
State acquiring territory or undergoing change. In both cases, the
State concerned had previously no opportunity to exhibit its

consent to its obligations, and thus must be “inferred” to have
given its consent.
c. Is international law, law, despite the insistence of some for the

classification of its rules as ‘morality’?
Hart addresses the distinctions between international law and morality to clear
the notion that international law is classified as morality.
a. Claims in international law are supported by reference to precedents,
treaties, and juristic writings. It is true that some claims may be
accompanied by a moral appeal, but this in no way means that
international law is solely dependent on morality for its substance. It is
also true that there are gray areas between international law and morality
(comity, for example), which, however, are merely analogous to the
standards of conduct in daily life (politeness and courtesy, for example).
b. The rules of international law are morally indifferent. A rule may exist
because of necessity, and not because of a moral importance attached to
a rule. This is manifested, for example, in the arbitrary distinctions found
in many rules—these distinctions are hard to justify under any moral
standpoint, for most rules are crafted for purposes of certainty or
predictability, and not out of any moral need.
c. Morality is an ultimate standard by which human actions (legislative or
not) are evaluated. International law is not, and therefore, might be
subject to change by legislative action (in the future, if such an
international legislature will come to existence). Morality, by its definition,
cannot be changed by human legislative fiat.
Hart also notes, before concluding this part, that while there is a sense of moral
obligation that accompanies the actions of States in complying with international
law, this does not mean that such a moral sense of obligation must be a condition
for the existence of international law. Looking at State practice, he observes that
the sense of moral obligation is not one of the reasons why international law
exists, nor is it one of the bases of how it is justified.
d. Is international law, law, even in the absence of a basic norm governing it?
a. Hart mentions Kelsen’s (and others’) formal analogy between municipal

and international law, that for him, is worth considering:
- Like municipal law, international law must possess a basic norm, or a
‘rule of recognition,’ by which the validity of other rules are assessed,
and in virtue of which the rules constitute a system.
- An opposing view: international law merely consists of a set of
primary rules not united in the manner above.
b. Hart questions the necessity of having a basic norm in international law.
- For him, the mere existence of rules does not involve the existence of
a basic rule. Simply, a rule can stand on its own.
- If rules are accepted as standards of conduct, and are supported with
appropriate forms of social pressure distinctive of obligatory rules,
then nothing more is required to show that they are binding.
- The basic norm for international law, if one pushes Kelsen’s analogy
relating to the basic norm, is that “States must behave as they have
customarily behaved.” For Hart, this is a strange norm, a mere
reduplication of the fact that a set of rules is accepted by States as
binding.
Hart concludes, finally, by emphasizing that as of present, these doubts and

discussions on international law refer merely to analogies of form, and not the
content, of both international and municipal law. In matters of content, he says,
no other social rules are so close to municipal law as international law.
8. Other Required Readings and Assignments
I. D’Errico, Peter, “The Law is Terror Put into Words,” pp. 246-249 Before the
Law, supra.
a. Law, which is often the backbone of authority structures in society, is under
scrutiny for its role in maintaining oppressive social conditions and for the
exceeding narrowness of legalism as a worldview.
b. We are seeing through the facade of a “government of laws” to the people who
animate that system and are coming to understand that legalism is as much an
obscuring veil as a clarifying lens for approaching social problems.
c. This growing skepticism and criticism about law is part of the decline of legalism
in our culture. The decline, however, is not a simple matter. It is beset with
resistance and contradiction.
d. Our justice system is only another social institution, subject to all the ills that
befall any other institution: bureaucracy, preoccupation with its own maintenance
and expansion, depersonalization of those whom it is supposed to serve, et
cetera
e. We are authority addicts: daily life under legalism is permeated in all its aspects
by a belief in authority.
f. Judith Shklar: “At one end of the scale of legalistic values and institutions stand
its most highly articulate and refined expressions, the courts of law and the rules
they follow; at the other end is the personal morality of all those men and women
who think of goodness as obedience to the rules that properly define their duties
and rights.”
g. Life for most people seems to be a project of obedience, of duty and
responsibility to authority. There is a fear of letting go of authority and attempts to
impose our authority on others, preoccupation with what others think, feelings of
isolation from others and the world, and fear that we will not exist if we do not
define ourselves, label our relationships and categorize ourselves and each
other.
h. Under legalism, we are constantly trying to control ourselves and each other
within limits laid down by authority.
i. The concept of a person’s “rights” is basic to legalism. The common

understanding of this concept is that law takes the side of the people against
governmental or other systematic injustice.
j. The central concern of legalism is with the maintenance of its own power system,
and the law only appears to take the side of the people. The real concern of
legalism in its recognition of popular claims of right (civil rights, etc.) is to
preserve the basic governmental framework in which the claims arise.
k. The concept of civil rights has meaning only in the context of an over arching
system of legal power against which the civil rights are supposed to protect.
Ending the system of power would also end the need for civil rights.
l. In the end, this analysis points to the concept of personal “rights” as being a
technique for depersonalizing people. We end up, in short, respecting the law
rather than people; and this, for legalism, is the essential aim.
m. Due Process: Legalism would have us regard due process as the key to freedom
under law, the means by which fairness and regularity are incorporated into legal
decision making.
n. In reality, due process is the attempt of the system to insure that claim and
counterclaim, freedom and grievance, both occur only within the existing legal
universe and in its terms.
o. The basic due process problem, as far as legalism is concerned, is only to
preserve the apparatus of official legal control.
p. Due process is essentially a technique for co-opting social change forces that
threaten, or appear to threaten, official control of society.
q. People were able to see through law and legal processes in ways that I had been
taught to close my eyes to.
r. When their vision was rebuffed by law, it became the basis for a deep cynicism
about legal process.
s. Legalism wasn’t dealing with the roots of problems, but only with their surface
appearances.
t. Many traditional lawyers in conventional practices who were well aware that the
law was not reaching their clients’ real problems: economic, familial,
psychological, and so on. Yet, locked into the mazeway of legalism in their
education, and bereft of any critical viewpoint, they seemed resigned to a life of
legal routine.
u. Legalism as a defunct social ideology:
v. Capable at one time of unleashing tremendous productive social forces, legalism
is now only a source of confusion and contradiction.
w. Far from uniting America into a coherent and just society, traditional ideas of law
foster division and give the stamp of approval to inequality.
One legacy of legal realism

• Karl Llewellyn: “…categories and concepts, once formulated and once they
have entered into thought processes, tend to take on an appearance of solidity,
reality and inherent value which has no foundation in experience.”
• The legal realist movement opened the door to new ways of thinking about the
law, ways colored by non- or even anti-legalist perspectives.
• Brainerd Currie: “Solutions to the problems of a changing social order are not
implicit in the rules and principles which are formally elaborated on the basis of
past decision, to be evoked by merely logical processes; and effective legal
education cannot proceed in disregard of this fact. If men are to be trained for
intelligent and effective participation in legal processes, and if law schools are to
perform their function of contributing through research to the improvement of law
administration, the formalism which confines the understanding and criticism of
law within limits fixed by history and authority must be abandoned, and every
available resource of knowledge and judgment must be brought to the task.”
! Legalism’s continuous attempt to preserve old values by giving them new
meaning can be replaced by an attempt to follow new meanings into a
transvaluation of the central features of law and social life.
II. Bobbitt, Philip, “Public International Law,” (pp.103-118) A Companion to

Philosophy of Law and Legal Theory, ed. Patterson, 1999.
International Law
- Has to do with relations among states within a society of states that is distinct from the
relationships among rulers and their subjects that hitherto prevailed.
- A society of states rather than individuals
Subject matter of International Law:

1) Matters that arise among states because they do not fall within the authoritative
scope of a single state (territory, jurisdiction, nationality, migration)
2) Issues that concern a state's behavior in relation to other states (use of force,
construction of treaties, operation of intergovernmental organizations)
3) Aspects of the state itself (its definition, liability and immunity, relationship to its
own nationals especially its respect for their human rights)
Territory
- Modes of legitimate acquisition of territory:
1) discovery
2) occupation
3) prescription (as by long and peaceful possession)
4) purchase from another state
5) cession by another state
6) conquest
7) disposition by treaty
8) assignment by an international organization
Jurisdiction
- The competence of a state to prescribe, adjudicate, and enforce its domestic law is
primarily a matter of territorial extent.
- 4 other principles that support jurisdiction (there are used to resolve those situations in
which more than one state claims jurisdiction):
1) nationality
2) security
3) universality
4) passive personality
- More than one state may legitimately claim jurisdiction: no rule of international law grants
a state exclusive jurisdiction, even over matters that occur solely within its borders
- A state may exercise jurisdiction over its nationals wherever they may be and with
respect to offenses committed anywhere
- A state may also exercise jurisdiction over non- nationals whose offenses occur abroad
but the effects of which are injurious to the security of the state
- universality principle: universally accepted crimes

- Passive personality: A state may exercise jurisdiction over its non- national with respect
to acts that, although they occurred beyond the territory of the state, inflicted harm on
that state's national.
Nationality
- International law is the law for a society of states, it does not confer nationality on any
individuals, but it can be said to restrict the discretion of the states to grant or withdraw
nationality and to give rules bu which contested versions of a single person's nationality
can be resolved.
- Statelessness: absence of nationality and its consequence is that state that inflicts injury
on a stateless person cannot be challenged by any other state attempting to invoke its
protection for that person
- For plural nationals, every state whose nationality a person possesses may regard him
as a national and no state can invoke the protection of its nationals against a state to
whose those persons are also nationals.
- States have the right to determine whom to admit within their borders, and whom to
expel.
- Vast domains are subject of international law even when this territorial basis is absent.
Thus the law of the sea, polar regions, air and outerspace as well as the global ecology
that transcends any particular territory, are all important dimensions of international law.
- Treaties depend upon international law because their construction depends on
international law. (subjects such as: treary accession, reservation, amendment and
modification, interpretation and termination)
Intergovernmental organizations
- Organizations such as: United Nations, League of Nations – were created as
permanent congresses, Red Cross, World Health Organization
- All these organizations were created by the International Law
The State
- The most important subject for international law is the state itself.
- The international order is composed of states
- International Law only because a reality once there was a society of states self-
conscious enough to be constituted in a particular way.
- International law is built out of the most fundamental assumptions of constitutional law,
since the state is a constitutional idea.
- The Principal constitutional characteristics of the state:
1. sovereignty
2. recognition
3. personality
4. continuity
5. integrity
- sovereignty: - All states are equal with respect to rights of sovereignty, they are equal
with respect to rules of international law
- recognition:
- 3 criteria for the recognition of a state:
1. effective control of a defined territory with a permanent population
2. capacity to conduct international relations
3. independence from other countries
- personality: -international personality means that an entity is capable of possessing
international rights and obligations under international law and that it has the capacity to
maintain its rights by bringing international claims.
- continuity: calls into question whether the new situation of a state carries all its rights and
obligations of the previous regime.
- integrity: a state may lack integrity if the territorial composition of the state renders it
unable to exist as a coherent entity.
State Liability
- under International Law a state can be held liable for the consequences of its torts,
breaches of contract, and nonpayment of debts, much as other juridical entities.
- States can be held liable for failure to prevent harm to aliens, failure to prosecute
persons who wrongfully injure aliens, and the judicial denial of justice to aliens.
Human Rights
- UN Charter: calls for universal respect for and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language and religion to be
able to achieve international cooperation.
The Sources of International Law:

1) International conventions, whether general or particular, establishing rules
recognized by the contesting states
2) International custom as evidence of general practice accepted as law
General Principles
- This refers to principles of domestic law shared by civilized states.
- this includes: responsibility of a principal for the acts of its apparent agent, collateral
estoppel, reparations for damages and so on
- these principles are the result of innumerable encounters with similar legal problems and
thus supply international law with a resource of useful legal rules.
Conclusion
- The relationship between constitutional law and international law is undergoing
significant changes
- As the American paradigm of constitutional sovereignty becomes more widespread, an
international order of limited sovereigns may replace the current legal order, with
profound consequences for state responsibility and intervention.
III. Dane, Perry, “Conflict of Laws” (Private International Law), Patterson.
• This essay focuses on choice of law, the branch of conflict of laws that specifies
the relevance of foreign law to a case heard in one jurisdiction but having
connections to others.
• 2 different views in the choice of law
A. Classical choice of law
B. Modernistic choice of law
A. CLASSICAL CHOICE OF LAW

o Drawn most fully by Joseph Bale in the 1930s
o Rejects legal pluralism

o Rested on 8 pillars:
1. Assumed that the only sources of effective legal norms were nation-states and
their judicial divisions (exclusivity of states)
2. The choice of laws was a matter of individual forums each adjudicating the rights
of litigants before it; and not a matter of international law since they believed that
it had little to say about the choice of law (limited relevance of international or
federal law)
3. “Vestedness”
! substantive legal rights are vested on the basis of real-world,
primary events and behaviors.
! did not reflect an exercise of lawmaking authority, but the forum’s
effort, according to its own best lights, to allot that authority
! The operational meaning of vestedness is that a forum should
not, in doing choice of law, take its own identity as a variable
because doing so would mean that a party’s pre-existing rights
change when the party enters a particular forum.
! Different forums could have different choice of law regimes, each
itself consistent with vestedness thus does not produce uniform
results
! Vestedness does not require that a forum with jurisdiction
always enforce even substantive right
! a forum has the power to decline to enforce foreign norms
that violated its own “public policy”
4. “Territorialism”
! Any choice of law theory grounded in the division of the world
into territorial states
! 2 forms:
a. person-territorialism – looks to where actors come from
b. act-territorialism - looks to where relevant events occurred.
5. Regime of rules
! Strove for objective, automatic, simple, criteria
! But this did not live up to its billing because it elided some hard
questions for which its rules were little help
6. Instantaneity
! The task of most choice of law rules was to identify the event that
would locate the place and the precise instant that established
which law should govern the relevant right
7. Effort to frame choice of law rules that were neutral as to substantive outcome
! Its rules specified which law would apply, not which result would
prevail
8. Formalism
! It sought to find choice of law rules (eg. “place of injury” for tort,
“place of making” for contracts) that did not depend on
particularized assessments of state interests in specific legal
rules
! Relied on general, unmodulated, ideas about how the
normative concerns of jurisdictions translated into the creation
of legal rights
o The 8 pillars combined = the occurrence of a specific event, in a defining
moment, in a given place, led the law of that place to fix a set of rights, and
the self-imposed duty of a forum was to search for the act and the moment
and the place and the rights.
B. MODERNIST CHOICE OF LAW

o Argument against the six pillars of classicism (modernist did not question
the first two pillars)
1. Retreat from a regime of simple rules (Pillar 5)
• connections between facts in the world and legal regimes are
not binary, logically exclusive couplings, but are matters of
degree
2. Attack on Instantaneity (*Instantaneity: Rights are vested in an instant. Before that
instant, no right existed. After that instant, everything that happened just unwound
the spring.)
• Rights can mature and evolve. They can also arise out of a set
of events, even if a later adjudicator cannot pinpoint the
moment of their creation.
3. Shift from act-territorialism to person-territorialism
• Cook argued that the classical view that a woman could lose
her contractual disability by just crossing a border was
unrealistic and arbitrary
• Domicile and related concepts, such as residence or
citizenship, are all legal constructs. It is unclear whether any of
them can capture the full texture of the links between persons
and states.
4. Against classical claim to substance-independence (Pillar 8)
• Choice of law must look to the particulars of state interests in
legal questions
• The abstract sureties of the old regime must be tested by this
question: which states would care about the outcome of a case,
and why?
o However, modernists haven’t resolved to what extent their account of state
“interests” is descriptive or normative
5. Argued that choice of law analysis should give up its neutrality as to outcome (Pillar
7)
• Robert Leflar: courts should undertake an explicit, objectively
defined, search for the “better law”
6. Attack on vestedness
• The crucial moment in the modernist attack on vestedness
came when Brainerd Currie moved from “false conflicts” to his
solution of “true conflicts.” A true conflict exists when both the
forum and another state have a genuine, serious, interest in a
case.
o the “sensible … thing for any court to do, confronted with a true conflict of interests,
is to apply its own law”
• Cook pressed the claim that, when a court engaged in choice of
law, it was not, despite appearances, applying foreign law. All it
was doing was enforcing a “right created by its own law,” but
incorporating, in the definition of that right, “a rule of decision

identical, or at least highly similar though not identical, in scope
with a rule of decision found in the system of law in force in
another state or country”
• Law was nothing more than the behavior of legal institutions
engaged in the exercise of power. Courts, in this view, could do
right by parties. But they were not in the job of finding “rights,”
at least distinctly legal rights, in the sense of entitlements with a
real, objective, juridical existence apart from their enforcement
• Questions for Modernists

o The most pressing problem within the modernist paradigm involves the
nature of the interests that states have in their domiciliaries
o Currie: when the parties to a controversy were domiciled in different states,
a state would only be interested in applying its law if application of that law
would benefit its own domiciliary, but not otherwise. Thus, if state X had a
pro- plaintiff rule on an issue, and its domiciliary was the plaintiff, it had
interest in applying its law. But if its domiciliary was the defendant, then it had
no interest
• The flaw in Currie’s view, according to his critics: he ignores the
extent to which laws reflect, not a state’s wish to confer largesse, but
its judgment of corrective justice. Lawmakers do not only legislate
entitlements; they also legislate correlative duties. A state making
judgments of corrective justice has as much of an interest in
penalizing its domiciliaries when they have done wrong as in
benefiting them when they have been wronged.
• Questions for Classicalists
o Classicism never frankly assessed the role of substantive legal ideas in the
authority-allocating task of choice of law
o Classical tradition never fully defined what it meant to “apply” foreign law
o Distinction between first-order and second-order legal processes
• Modernists since Cook have argued that choice of law is necessarily a
first-order process, no different in principle from tort or contract. The
general classical view is that it is a second-order process, an effort to
allot rather than exercise legislative jurisdiction.
Survey from Past to Present
Overview of the Philippine Legal System

The Philippine legal system is aptly described as a blend of:
1. customary usage, and
2. Roman (civil law) - family relations, property, succession, contract and criminal
law
3. Anglo-American (common law) system - constitutional law, procedure,
corporation law, negotiable instruments, taxation, insurance, labor relations,
banking and currency
This particular legal system is the result of the immigration of Muslim Malays in the
fourteenth century and the subsequent colonization of the islands by Spain and the
United States. (aseanlaw)
Pre-Spanish Period
Historians have shown conclusively that the early Filipinos lived in numerous
independent communities called barangays under various native rules which were
largely customary and unwritten. Evidence points to the existence of two codes, namely,
the Maragtas Code issued by Datu Sumakwel of Panaya Island some time between
1200 and 1212 AD and the Penal Code of Kalantiao issued by a datu of that name in
1433. (asenlaw)
These customary laws dealt with subjects such as family relations, inheritance, divorce,
usury, partnerships, loans, property rights, barter and sale, and crime and punishment.
The penal law distinguished between felonies and misdemeanors, recognized a
distinction between principal and accomplice in matters of criminal liability, and had an
idea of the existence of qualifying and mitigating circumstances. (T. Agoncillo & M
Guerrero History of the Filipino People, 4th ed., 1973, pp 46-7). Like many ancient
societies, trial by ordeal was practiced in the barangay. (aseanlaw)
The arrival of Ferdinand Magellan in the Philippines on 16 March 1521 presaged a new
era in the history of Philippine law. Spanish laws and codes were extended to the
Philippines either expressly by royal decrees or by implication through the issuance of
special laws for the islands. The most prominent of these laws and codes were the
Fuero Juzgo, Fuero Real, Las Siete partidas, Las Leyes de Indias, which contained all
the laws then in force in the Spanish colonies and the Novisima Recopilacion, which
comprised all the laws from the fifteenth century up to 1805. (M Gamboa, An
Introduction to Philippines Law, 7th ed. 1969, pp 69-70).
Towards the Philippine Republic of 1898

By 1872, the Filipinos had revolted against Spain because of the abuses committed by
the Spanish authorities and friars. The revolution spread so rapidly that on 12 June
1898, the independence of the Philippines was proclaimed by General Emilio Aguinaldo.
A Revolutionary Congress was convened on 15 September 1898, and on 20 January
1899, the Malolos Constitution was approved. (aseanlaw)
The Malolos Constitution

• This Constitution proclaimed popular sovereignty and enumerated the
fundamental civil and political rights of the individual. At the time of its
proclamation, the Republic exercised, albeit briefly, de facto authority, although
this came to an end upon the coming of the Americans.
• The end of the Spanish American War; which was followed by the signing of the
Treaty of Paris on 10 December 1898, paved the way for the cession of the
Philippines to the United States. Upon the establishment of American
sovereignty, the political laws of the Philippines were totally abrogated and
Spanish laws, customs and tights of property inconsistent with the US
Constitution and with American principles and institutions were superseded, The
government operated under different organic laws, namely, President McKinley's
Instructions to the Second Philippine Commission on 07 April 1900; the Spooner
Amendment of 1901; the Philippine Bill of 1902; the Jones Law of 1916 and the
Tydings-MacDuffie Law of 1934.5 Pursuant to the Tydings- MacDuffie Law, a

Commonwealth government was to be established for a transitional period of ten
years before independence could be granted.
• The TML granted to the Filipinos a right to formulate their own Constitution. In
due course, a constitution was approved on 8 February 1935 which was signed
by US President Franklin D Roosevelt on 23 March 1935 and ratified at a
plebiscite held on 14 May 1935, voters went to the polls to elect the first set of
executive and legislative officials led by President Manuel L. Quezon and Vice-
President Sergio Osmeña.
• July 4, 1946 is the inauguration of Philippine Independence. A Philippine
Republic was born. A republic means a government by the people and
sovereignty resides in the entire people as a body politic. The provisions of the
1935 Constitution provided for the establishment of three coequal branches of
government. Executive power rests in the President, legislative power in two
Houses of Congress and judicial power in the Supreme Court, and inferior courts.
Separation of powers is recognized, Efforts to amend the 1935 Constitution
started on August 24, 1970 with approval of Republic Act No. 6132 where 310
delegates were elected on November 10, 1970. On June 1, 1971, the
Constitutional Convention met. While it was still session, President Ferdinand E.
Marcos declared Martial Law on September 11, 1972. The Constitutional
Convention completed the draft Constitution on November 29, 1972. It was
submitted for ratification through citizens’ assemblies on January 17, 1973. This
is known as the 1973 Constitution. (Santos-Ong, M., Philippine Legal Research,
Hauser Global Law School Program, NYU Law)
Martial Law Period

• The Congress of the Philippines was abolished when Martial Law was declared
on September 11, 1972. The Martial Law period was governed by the 1973
Constitution which established a parliamentary form of government. Executive
and legislative powers were merged and the Chief Executive was the Prime
Minister who was elected by majority of all members of the National Assembly
(Parliament). The Prime Minister had the power to advise the President. The
President is the symbolic head of the state. This parliamentary government was
never implemented due to the transitory provision of the 1973 Constitution.
Military tribunals were established. Amendments to the Constitution were made
wherein by virtue of amendment no. 3, the powers of the President and the Prime
Minister were merged into the incumbent President Ferdinand E. Marcos.
(Santos-One/NYU)
• Amendment no. 6 authorized President Marcos to continue exercising legislative
powers until Martial law is in effect. Amendment no. 7 provided for the barangays
as the smallest political subdivision at the sanggunians, or councils. The 1981
amendment introduced the modified presidential/parliamentary system of
government of the Philippines. The President shall be elected by the people for a
term of six years while the Prime Minister shall be elected by a majority of the
Batasang Pambansa (Parliament) upon the nomination of the President. He was
the head of the Cabinet and had supervision over all the ministries.
• Proclamation no. 2045 (1981) lifted Martial Law and abolished Military tribunals.
Elections were held on July 16, 1981 and President Marcos was re-elected into
office as President. The constitution was again amended in 1984 and a plebiscite
was held on January 27, 1984 pursuant to Batas Pambansa Blg 643 (1984).
Elections were held on May 14, 1984 for the 183 elective seats in the 200
member Batasang Pambansa. (Santos-Ong/NYU)
• An impeachment resolution by 57 members of the opposition was field against
President Marcos but was dismissed. A special presidential election, popularly
known as Snap Election, was called by President Marcos on November 3, 1985
and was held on February 7, 1986. The National Movement for Free Elections, or
NAMFREL, results showed that Corazon Aquino led by over a million. However
the Batasang Pambansa declared the Ferdinand E. Marcos and Arturo M.
Tolentino won over Corazon Aquino and Salvador Laurel as President and Vice-
President respectively. This event led to the People Power revolution, which
ousted President Marcos on Friday 25, 1986. (Santos-Ong/NYU)
Republic Revival (1986-Present)
• Corazon C. Aquino and Salvador H. Laurel took their oath of office as President and
Vice- President of the Philippine Republic on February 25, 1986. Proclamation no. 1 was
promulgated wherein she and her Vice President took power in the name and by the will
of the Filipino people. Proclamation No. 3 (1986) provided for a new government and a
Provisional Constitution or Freedom Constitution was adopted. A Constitutional
Commission was constituted by virtue of Article V of the Provisional Constitution and
Proclamation no. 9. After 133 days, the draft constitution was submitted to the President
on October 15, 1986 and ratified by the people in a plebiscite held on February 2, 1987.
Under the transitory provision of the 1987 Constitution, the President and the Vice-
President elected in February 7, 1986 elections were given a six year term of office until
June 30, 1992. Congressional elections were held on May 11, 1987. The Republican
form of government was officially received when the 1987 Constitution was ratified and
Congress was convened in 1987. Legislative enactments again rested in the Congress.
Republic Acts were again issued by Congress, the number of which took off from the last
number used before Martial Las was declared. The number of Republic Acts continued
from the number last used before Martial Law (Republic Act No. 6635 (1972) and
Republic Act No. 6636 (1987)). (Santos-Ong/NYU)
Sources of Philippine Law

• The main sources of Philippine law are the Constitution, statutes, treaties and
conventions, and judicial decisions.
o The Constitution is the fundamental law of the land and as such, it is
authority of the highest order against which no other authority can prevail.
Every official action, to be valid, must conform to it.
o Statutes are intended to supply the details which the Constitution,
because of its nature, must leave unprovided for. The statues of the
Philippines are numerous and varied in their contents. They are intended
to provide rules and regulations which will govern the conduct of people in
the face of ever-changing conditions. (aseanlaw)
o Having the same force of authority as legislative enactments are the
treaties which the Philippines enters into with other states. A treaty has
been defined as a compact made between two or more independent
nations with a view to the public welfare. (Adolfo v. CFI. 34 SCRA 169) As
a member of the family of nations, the Philippines is a signatory to and
has concluded numerous treaties and conventions. (aseanlaw)
o Philippine law is also derived from cases because the Civil code provides
that 'Judicial decisions applying to or interpreting the laws or the
Constitutions shall form a part of the legal system of the Philippines'.
(Article 8, NCC) Only decisions of its Supreme Court establish
jurisprudence and are binding on all other courts. (Miranda v. imperial, 77
Phil. 1066) Thus, these decisions assume the same authority as the
statutes to which they apply or interpret and until authoritatively
abandoned, necessarily become, to the extent that they are applicable,
the criteria which must control the actuations not only of those called
upon to abide thereby but also of those duty- bound to enforce obedience
thereto. (Caltex v. Palomar, 18 SCRA 247) (aseanlaw)
Customs
• Customary law forms part of the Filipino legal heritage because the 1987 Constitution
provides that 'the State shall recognize, respect, and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions and institutions.'
(Art. XIV, § 17) This was true even as early as 1899 because the old Civil Code provided
that ‘where no statute is exactly applicable to the point in controversy, the custom of the
place shall be applied, and in the absence thereof, the general principles of law’.
(aseanlaw)
• The judge can apply the custom of the place or, in its default, the general principles of
law in the absence of any statute governing the point in controversy; otherwise the
provision of the same Code which require him to decide every case even where there is
no applicable statute would prove to be a veritable enigma. (Art. 9, NCC; cf. Gamboa,
An Intro to Phil. Law, 1969) The Civil Code also provides that ‘customs which are
contrary to law, public order or public policy shall not be countenanced’, and ‘a custom
must be proved as a fact according to the rules of evidence’. (Arts. 11 and 12, NCC)
Thus, Philippine law takes cognizance of custom which may be considered as
supplementary sources of the law. (aseanlaw)
But what is the Filipino's idea of Law?

• Essentially NORMATIVE (guide for Conduct)
• Essentially a reflection of MORALITY (oriented towards the Good, and the
dignity and Well-Being of the Human Person)
• DUTY-oriented, rather than right-oriented
• Strongly-oriented towards the Supernatural (Divine Providence; ex. Almighty
God in the Preamble)
Thus 1987 Philippine Constitution is:

• Pro-life – bans nuclear weapons; abolished death penalty except under
extreme cases (heinous crimes as determined by Congress), protects the
unborn from the moment of conception
• Pro-family – regards marriage as a sacred institution, protects and upholds
the autonomy of the family (pursuant to the principle of subsidiary)
• Pro-people and pro-poor – because of its social justice provisions, the
inclusion of measures of people participation (party-list system, referendum,
recall, promotion of people’s organizations)
• Pro-environment
• Pro-Filipino – with industries and activities reserved for Filipino nationals,
ban against foreign military bases
• Pro-PERSON – Bill of rights anchored on the dignity of the human person (in
the realm of religious belief, criminal prosecution), provides for a Commission
on Human Rights (CHR)
• Pro-democracy – providing for the right of suffrage and the establishment of
the COMELEC as a constitutional commission
• Pro-accountability – with specific provisions for the accountability of public
officers, including the establishment of the Office of the Ombudsman and
making the Commission on Adult (COA) an office of constitutional character
• Anti-dictatorship and anti-abuse – limitations on the imposition of martial
law, the identification of the Armed Forces as protector of the people
(aseanlaw and other sources)
Structure of Government
• Republican and democratic (sovereignty resides in the People and all
governmental authority emanates from them)
• Separation of powers/check and balance – 3 Branches of Government
(Legislative, Executive, and Judiciary)
• Presidential type of government with a strong Chief Executive, and no fusion
between the executive and the legislature
• Bicameral legislature – Senate (elected nationally) and the House of
Representatives (elected locally on a per district basis, except for party-list
representatives who are elected nationally by sectors and supporters).
• Independent judiciary (“the last bulwark of democracy;” with extra-ordinary
certiorari jurisdiction) (the Supreme Court alone can promulgate rules of pleading
and practice)
• Local government system marked by decentralization and autonomy
• Local autonomy for certain areas subject to the will of the people concerned (e.g.
Autonomous Region for Muslim Mindanao)
• Constitutional commissions – COMELEC, COA, and the CIVIL Service
Commission (CSC)
• Special offices – Ombudsman, CHR (aseanlaw, ehv)
The Justice System and the Legal Profession

1. Multi-tiered court system (Municipal Trial Courts/Municipal Circuit Trial
Course/Metropolitan Trial Courts; Regional Trial Courts; Court of Appeals;
Supreme Court)
2. Special Tribunals/Quasi-judicial Agencies: Court of Tax Appeals (CTA), National
Labor Relations Commission (NLRC)
3. Criminal Procedure: Local Prosecutor’s Office/Department of Justice; MTCs of
MCTCs; RtCs; CA; SC
4. Procedure for Graft Cases: Ombudsman; Sandiganbayan; SC
5. Muslim courts and Muslim Bar
6. Trial Courts with Special Jurisdiction – RTCs as commercial and family courts,
also as courts for heinous crimes; MCTs
Handling criminal negligence and bouncing check cases

1. Small Claims Courts
2. Barangay Justice System

3. Alternative Dispute Resolution (ADR)
FUNDAMENTAL PRINCIPLES OF THE JUDICIAL OFFICE:

1. Judicial independence
2. Judicial impartiality - impartiality has its face through judges and undermines
independence of judiciary
• CLASSICIAL CONCEPTION: “blindfolded Themis”
o The role of the judge is to discover and simply apply the law.
o The most familiar and comfortable conception of impartiality
o The ideal of disengagement
o Reason, not option, will ensure fairness.
o Equality before the law is the mantra: thus, everyone is to be
treated the same regardless of their age, class, or gender.
o The judge should be colorblind # racial identity is presumptively
irrelevant unless its particular relevance can be causally
demonstrated in a particular case.
o Decisions about justice are best made behind a “veil of
ignorance.” That is, you don’t want to know, but is it possible?
o Limitations:
1. We are saturated with relationships and preconceptions.
– Impartiality is one thing, indifference is another.
2. It is classical only if it meets traditional ways.
3. Inescapable reality that we are social beings.
• RELATIONALIST MODEL
o Relationalist – the Lord of Jurisprudence
o Tribal leader in an African setting (big hole in the stomach, spikes
in the chest)
o Conception:
! The judge should incorporate empathy into his/her tasks
! Recognizes that we all have inescapable social contexts
that influence our life experiences, our conduct and our
understanding of the world
! Racialization – unequal and hierarchical social relation
construct on the basis of race (as opposed to racial identity
or skin color)
! Before judging, he should attempt to see the world from
the perspective of the "other"
o Problems:
! Danger of appropriation # motion to inhibition (i.e., if the
judge is proven to be leaning towards the other side)
! Whether the burden of relationalism is too great
! Our capacity as human beings to be able to adequately
come to terms with the position
• SITUATIONAL APPROACH – “jurisprudence”

o Weighing the decision at a distance from both parties. Unlike
relational, the judge maintains a certain distance.
o The act of judging is an inescapably social act.
o As a judge, you are to be guided by policies such as the
Constitution.
o Cultural forces are always crucial variables and that judging can
only aspire to impartiality if it is sensitive to social phenomena as
racialization.
o There should be “child sensitivity.”
o Questions to be asked:
! How am I to judge an “other”?
! Would I reach a different decision if the parties in question
were white or people of color?
! If I were the person appearing before the judge, do I think
that sufficient reason have been given to satisfy me that I
have been treated in a fair manner, even if I have not won
my point?
o Problems of diversity cannot be avoided by rendering them
invisible. Rather, it is desirable to explicitly address them with
integrity and candor.
o Situationalist approach is not a panacea.
! Our capacity as human beings to be able to adequately
come to terms with the position of the other continues to
be a significant problem with this approach.
Law as a Way to Resolve Conflicting Interests
1. Precedent – “Llewyn Karl, Excerpt from “The Bramble Bush,” Before the
Law, pp/ 12-13, and 23-34, supra. (notes taken from the Bramble Bush, On
our Law and its Study by Karl Llewellyn)
• What is precedent? Official doing over again under similar circumstances
substantially what has been done by him or his predecessor before; the
foundation is basically what we know as habit.
• A dignified name for the practice of the officer or of the office.
• If records are kept by the courts but they do not pay attention or follow them,
there might be a time where a lawyer might take advantage of it and use it to his
advantage, to the prejudice of the court. At this point, therefore, there is an
ethical element, an argument that the courts should not only do, but should
continue, what they have been doing.
o What one is doing becomes the “right” thing to do. It becomes what is
expected.
o To continue past practices is to provide a new official in his inexperience
the accumulated experience of his predecessors.
o It does not matter how his predecessors have acted, whether they be
smart, foolish, wise or ignorant. The continuance of the practice still gives
men a way to predict what the action would be.
• To know the law is helpful, even when the law is bad.
• The legal norm must be followed. Each case must be decided as one instance
under a general rule.
• Llewellyn however notes that despite all the reasoning supporting the following of
a precedent, there are still objectors.
o The idleness or foolishness of a predecessor could chain a new judge to

a bad decision.
o Conditions may have changed.
• The orthodox doctrine of precedent: Every case lays down a rule, the rule of the
case, the ratio decidendi. After such pronouncement, a later court, however, can
reexamine the case and say that it should be restricted in a specific way. In the
extreme form, it may result in “confining the case to its particular facts.” (i.e.
restricting the decision in a previous case so it only applies to a specific type of
pencil so that the previous case would not be applicable to the one being tried in
the later court.)
o Cannot say that the previous court was wrong. It would undermine
infallibility of courts.
o A respectful way of abandoning the decision.
o Strict View: Lawyers arguing for a distinction so that a precedent would
not be applicable. Putting together those that would support their case
while whittling away precedent unfavorable to them by making
distinctions.
! For unwelcome precedents; unfavorable.
o Loose View: Court has decided authoritatively all points which it chose to
rest a a case to pass. What the court has said is what the law is.
! Capitalizing Welcome Precedents: looking at past decisions to say
that that is what the court said before, hence that should be
carried on in the current case.
• Precedent is two headed; Janus-faced. That it is not one doctrine, nor one line of
doctrine, but two, and two which, applied at the same time to the same
precedent, are contradictory of each other. There is one doctrine for getting rid of
precedents deemed troublesome and one doctrine to make use of precedents
that seem helpful.
• Knowing both, however, will help you predict which view the court would choose.
2. Law and Conflicting Interests,” “Before the Law”, pp. 63-67, supra
• Themis: impartial goddess of justice who carried scales to weigh competing
contentions and a sword to enforce her decrees.
o Roscoe Pound: Desires of each will always conflict or overlap with one
another; not all can be satisfied. Legal systems are designed to find out
which competing claims to material wealth and life space should be
allowed, and which should be denied.
• How can a legal system provide for this evaluation of claims?
o Pragmatic: results worked or are likely to work are used.
! Practical compromises of conflicting and overlapping interests.
! Prior dispositions of problems is the starting point, but it there is
fresh conflict, the solutions before may have been inadequate.
o Jural postulates: (see Rosco Pound)
o Overall ethos, directions and goals of the society in which it functions.
! Dean Roscoe Pound’s Model of Conflict and the Role of Legal Systems
Roscoe Pound (1870-1964) created a model which explains the role of legal
systems in determining which conflicting claims in the society are to be
recognized and secured and which are to be denied. According to Pound, it all
starts with scarcity and competition as the pre-conflict condition. Divergent claims
now arise as a result of the problem of scarcity and competition over material
wealth and lifespace. In order to resolve the conflict, legal systems come into
play by evaluating these claims. Pound suggested three ways of evaluating
claims: prior resolutions, jural postulates, and ethos direction and the goals of the
society where the legal system is functioning.
• Pound observed that in the field of social engineering, there is always the
task of satisfying the demands of people living in a politically organized society. If
these desires cannot all be satisfied, there should be at least going around as far
as possible.
• He viewed that justice is not something individual and not even a utopia
relationship of men. Rather, it is modifying societal relations in order to efficiently
satisfy the divergent urges of the people with the least tension and waste of
goods as possible.
• There are three ways of evaluating the conflicting claims in the society:
1. By following prior resolutions or precedents – This is the most practical
way of evaluating claims. Pound believed that those that have worked in the past
are most likely to work again.
2. By looking into the jural postulates – This method looks into the common
underlying assumptions of people in a civilized society which are:
• Men must be able to assume that no one will commit intentional
aggressions against them
• Men must be able to assume that they have the right over the fruits of
their labor and what they have acquired from their hard work
• Men must be able to assume that those they deal with will act in good
faith
• Men must be able to assume that people who are assigned to do certain
tasks are to do it with care
• Men must be able to assume that those who have thought of inflicting
damage will restrain them
3. By looking into the overall ethos, directions and goals of the society
where the legal system functions – These social pressures have an impact on
the legal consciousness of the people and to the expected legal order.
• The function of legal systems is adjudicating the competing claims and
interests.
• The model of conflict and legal systems doesn’t only show an explanation
of the processes in which conflicts start and then resolved; it is also provides a
theory of justice.
Nader, Laura, “The Case of Spoiled Chiles.”

SETTING
Feb. 24, 1964, 9:30
Town of Ralu’a, District of Villa Alta, Oaxaca (Mexico)
PERSONS INVOLVED
• Mr. Ignacio Andres Zoalage

- 55 year-old merchant
- Owner of the basket of chiles
• Mario Valdez Herrero

- Chauffeur of a cream-colored truck
SUMMARY
- ➢ Ignacio Andres brings a complaint to the Municipal Court President
(MCP) against Mario Valdez Herrero for bruising (damaging) a portion of the 47.5
kg of chiles he we was selling.
➢ Mario admitted to bruising the chiles, but claims that he is not at fault
because:
• The owner of the truck should’ve given him a helper
• He couldn’t see properly as the driver’s compartment was too high
• The merchant shouldn’t have placed his goods on the ground where trucks were
known to pass
➢ When asked by the MCP, Ignacio countered that there was enough room
for the truck to pass even if he placed his goods on the ground. However, Mario
claims that the space was at an angle making it impossible to pass without
damaging the Chiles. The MCP deemed it most convenient for the case if the
chauffeur paid for the damaged portion. The basket was brought in and after
being surveyed by the magistrate, they found the damaged portion to be around
1.5 KG. Ignacio asks to be paid 3 PESOS for the said portion. After Mario agrees
to pay, the MCP reminds the merchant to be more careful and not place his
chiles on the ground.
WHAT ABOUT THE CASE OF THE SPOILED CHILES?
➢ This case highlights the role of the courts in settling disputes through
basic principles of balancing.
Module 2
1. Do I have Rights?
a. Republic v. Sandiganbayan, GR No. 104768, July 21, 2003

Ponente: Justice Carpio
RECIT-READY DIGEST: Upon President Corazon Aquino’s assumption to office, she

issued EO 1, which created the Presidential Commission on Good Government (PCGG).
PCGG was mandated to recover the ill-gotten wealth of former President Marcos, his
immediate family, relatives, subordinates and associates. An investigation was
conducted, and a case was filed against respondent Major General Ramas. A search
warrant was subsequently issued, but the items obtained were alleged to be illegally
seized, as they were not in the warrant. The Sandiganbayan dismissed the complaint
against Ramas and Dimaano on the grounds that (1) the PCGG has no jurisdiction to
investigate the private respondents and (2) the search and seizure conducted was
illegal. The Supreme Court ruled affirming the Sandiganbayan’s decision stating that:
• The PCGG has no jurisdiction given that it (through the AFP Board) can only
investigate the unexplained wealth and corrupt practices of AFP personnel who
fall under either of the 2 categories mentioned in Section 2 of EO 1.
• Articles and things seized from the house of Dimaano were illegally seized.
Though the 1973 Constitution was inoperative during the interregnum, the
protection accorded to individuals under the International Covenant on Civil and
Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR)
were still in effect.
COMPREHENSIVE DIGEST:
Facts:
• Upon Pres. Corazon Aquino’s assumption to office, she issued Executive Order
No. 1 (EO 1) creating the Presidential Commission on Good Government
(PCGG). EO 1 tasked the PCGG to recover all ill-gotten wealth of former Pres.
Marcos, his immediate family, relatives, subordinates and close associates.
• Based on its mandate, the AFP Board, created by the PCGG, investigated
various reports of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas.
• The AFP Board found a prima facie case against Ramas for ill-gotte and
unexplained wealth in the amount of PHP2,974,134.00 and USD50,000.00—both
of which were confiscated from a certain Elizabeth Dimaano’s premises. It also
recommended that Ramas be prosecuted and tried for violation of RA 3019 or
the Anti-Graft and Corrupt Practices Act and RA 1379 or the Act for the Forfeiture
of Unlawfully Acquired Property.
• Hence, the PCGG filed a case against Ramas under RA 1379, with Dimaano as
his co-defendant.
• The Amended Complaint alleged that Ramas was the Commanding General of
the Philippine Army until 1986 while Dimaano was a confidential agent of the
Military Security Unit, Philippine Army, assigned as a clerk-typist at the office of
Ramas. It further alleged that Ramas “acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his other income
from legitimately acquired property by taking undue advantage of his public office
and/or using his power, authority and influence as such officer of the Armed
Forces of the Philippines and as a subordinate and close associate of the
deposed President Ferdinand Marcos.”
• Ramas contended that his property consisted only of a residential house at La
Vista Subdivision, Quezon City, valued at P700,000, which was not out of
proportion to his salary and other legitimate income and denied ownership of any
mansion in Cebu City and the cash, communications equipment and other items
confiscated from the house of Dimaano.
• Dimaano admitted her employment as a clerk-typist in the office of Ramas and
claimed ownership of the monies, communications equipment, jewelry and land
titles taken from her house by the Philippine Constabulary raiding team.
• The Sandiganbayan noted that petitioner had already delayed the case for over a
year and ordered petitioner to prepare for presentation of its additional evidence,
if any.
• Petitioner again and again admitted its inability to present further evidence.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino which held that PCGG does not have jurisdiction to investigate and
prosecute military officers by reason of mere position held without a showing that
they are “subordinates” of former President Marcos.
• As such, the case was dismissed and the confiscated items were ordered to be
returned. A Motion for Reconsideration was filed by the petitioner and the
Sandiganbayan denied such.
Issues:
1. Whether PCGG has the jurisdiction to investigate and cause the filing of a forfeiture
petition against Ramas and Dimaano for unexplained wealth under RA No. 1379? –
NO.
2. Whether Sandiganbayan erred in dismissing the case before completion of the
presentation of petitioner’s evidence? – NO.
3. Whether the respondent court seriously erred in holding that the articles and things
from the house of respondent Dimaano were illegally seized and therefore excluded
as evidence? – NO.
Held:
The petition is dismissed and the ruling of the Sandiganbayan is affirmed.
1. The PCGG has no jurisdiction.

• The PCGG can only investigate the unexplained wealth and corrupt practices of
AFP personnel who fall under either of the two categories: (1) AFP personnel
who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latter’s immediate family, relative, subordinate or
close associate, taking undue advantage of their public office or using their
powers, influence x x x; or (2) AFP personnel involved in other cases of graft and
corruption provided the President assigns their cases to the PCGG.
• Ramas does not fall under (2); hence, he must fall under (1) as a subordinate.
However, his position alone as Commanding General of the Philippine Army with
the rank of Major General does not suffice to make him a “subordinate” of former
President Marcos for purposes of EO 1 and its amendments. The PCGG has to
provide a prima facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business associates, dummies,
agents or nominees of former President Marcos were close to him.
• The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments.
The preliminary investigation of unexplained wealth amassed on or before 25
February 1986 falls under the jurisdiction of the Ombudsman, while the authority
to file the corresponding forfeiture petition rests with the Solicitor General.
2. The Sandiganbayan did NOT ERR in dismissing the case.

• The Petitioner has only itself to blame for non-completion of the presentation of
its evidence. It had almost two years to prepare its evidence. However, it kept on
delaying such presentation by filing numerous motions for postponements and
extensions.
• The Sandiganbayan overlooked petitioner’s delays and yet petitioner ended the
long-string of delays with the filing of a Re-Amended Complaint, which would only
prolong even more the disposition of the case.
• Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to
investigate and prosecute the case against private respondents. This alone
would have been sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture case against private respondents.
3. The warrant did not include the articles and things seized from the house of
Dimaano; hence, they were illegally seized.
• Petitioner argues that a revolutionary government was operative at that time by
virtue of Proclamation No. 1. Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed
private respondents’ exclusionary right. Therefore, the government may
confiscate the monies and items taken from Dimaano and use the same in
evidence against her since at the time of their seizure, private respondents did
not enjoy any constitutional right.
• The petitioner is partly right in their arguments that the 1973 Constitution was
inoperative during the interregnum. However, the Supreme Court ruled that the
protection accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.
• During the interregnum, the government in power was concededly a revolutionary
government bound by no constitution. No one could validly question the
sequestration orders as violative of the Bill of Rights because there was no Bill of
Rights during the interregnum.
• The revolutionary government assumed responsibility for the State’s good faith
compliance with the Covenant to which the Philippines is a signatory. The
Declaration, to which the Philippines is also a signatory, provides in its Article
17(2) that “[n]o one shall be arbitrarily deprived of his property.” Although it is not
intended as a legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. Thus, the revolutionary government
was also obligated under international law to observe the rights of individuals
under the Declaration.
• Furthermore, the revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Suffice it to say that the Court considers the
Declaration as part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the
Covenant or the Declaration in the same way it repudiated the 1973 Constitution.
As the de jure government, the revolutionary government could not escape
responsibility for the State’s good faith compliance with its treaty obligations
under international law.
2. Could Morality be legislated?
b. Imbong v. Hon. Ochoa, GR No. 204819, April 8, 2014

Ponente: Justice Mendoza
RECIT-READY DIGEST: RH Law / R.A. 10354 was enacted by Congress on December

21, 2012. Its IRR (Implementing Rules and Regulations) took effect on March 15, 2014.
Shortly after the President approved the law, challengers from various sectors moved to
declare the said law unconstitutional, hence this consolidated case with 14 petitions and
2 petitions-in-interventions.
Records show that the petitioners are assailing the constitutionality of the RH law on the
grounds of violation of right to life, right to health and right to protection against
hazardous products, right to religious freedom, violation of the constitutional provision on
involuntary servitude, right to equal protection of the law, right to due process (void-for-
vagueness), right to free speech, right to privacy of one’s family, violation of the
constitutional principle of non-delegation of legislative authority, the one subject/one bill
rule, Natural Law, Autonomy of Local Government Units (LGUs) and the Autonomous
Region in Muslim Minadanao (ARMM).
On March 19, the Court issued Status Quo Ante Order (SQAO) enjoining RH Law’s
effects and implementation for 120 days.
The Court declared the RH Law CONSTITUTIONAL except some provisions it found
unconstitutional. The Court held that the right to life and the right to health were not
violated. RH Law does not violate religion freedom when it mandated the state-
sponsored procurement of contraceptives in contravention of the religious belief of the
people and by requiring would-be spouses to attend seminars as a condition for the
issuance of marriage license. It does not violate the freedom of expression and
academic freedom. It does not violate the due process clause and the equal protection
clause. Its mandate does not amount to involuntary servitude. It validly delegated
powers to FDA without infringing autonomy of LGUs and ARMM.
RH Law, However, violated the guarantee of religious freedom by compelling medical

health practitioners, hospitals, and health care providers, under pain of penalty, to refer
patients to other institutions despite their conscientious objections and it violated marital
privacy and encroaches to the duty and responsibility of parents to their youth.
The Court disregarded natural law contention because it does not recognize Natural Law
as legal basis for upholding or invalidating a law.
Facts:
• Despite calls to withhold support thereto, R.A. 10354, otherwise known as the
Responsible Parenthood and Reproductive Health Act of 2012 (RH Law) was
enacted by Congress on December 21, 2012.
• Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience. The
Court now faces the iuris controversy, as presented in 14 petitions and 2
petitions-in-intervention.
• A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following grounds:
(1) The RH Law violates the right to life of the unborn.

(2) The RH Law violates the right to health and the right to protection against
hazardous products.
(3) The RH Law violates the right to religious freedom.
(4) The RH Law violates the constitutional provision on involuntary servitude.
(5) The RH Law violates the right to equal protection of the law.
(6) The RH Law is "void-for-vagueness" in violation of the due process clause of the
Constitution. In imposing the penalty of imprisonment and/or fine for "any
violation," it is vague because it does not define the type of conduct to be treated
as "violation" of the RH Law. 46
(7) The RH Law violates the right to free speech.
(8) The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution.
(9) The RH Law violates the right to free speech. To compel a person to explain a
full range of family planning methods is plainly to curtail his right to expound only
his own preferred way of family planning. The petitioners note that although
exemption is granted to institutions owned and operated by religious groups, they
are still forced to refer their patients to another healthcare facility willing to
perform the service or procedure.
(10)The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise their
children in accordance with their beliefs.49
Respondent’s contentions:
(1) there is no actual case or controversy and, therefore, the issues are not yet ripe
for judicial determination.;
(2) some petitioners lack standing to question the RH Law; and 3] the petitions are
essentially petitions for declaratory relief over which the Court has no original
jurisdiction.
• Meanwhile, on March 15, 2013, the Law’s (Implementing Rules and Regulation)
IRR for the enforcement of the assailed legislation took effect. But on March 19,
the Court issued Status Quo Ante Order (SQAO) enjoining its effects and
implementation for 120 days.
Issue: Whether or not R.A. No. 10354 / RH Law is unconstitutional. – NO.
Held: R.A. No. 10354 is NOT unconstitutional except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
1] Section 7 and the corresponding provision in the RH-IRR insofar as they: a)

require private health facilities and non-maternity specialty hospitals and hospitals
owned and operated by a religious group to refer patients, not in an emergency or
life-threatening case, as defined under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b) allow minor-parents or minors who
have suffered a miscarriage access to modem methods of family planning without
written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any healthcare service provider who
fails and or refuses to disseminate information regarding programs and services on
reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as

they allow a married individual, not in an emergency or life- threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health procedures
without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as

they limit the requirement of parental consent only to elective surgical procedures.
5] Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly
Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health care service provider
within the same facility or one which is conveniently accessible regardless of his or
her religious beliefs;
6] Section 23(b) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her religious
beliefs;
7] Section 17 and the corresponding prov1s10n in the RH-IRR regarding the

rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8] Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
“primarily” in defining abortifacients and contraceptives, as they are ultra vires and,
therefore, null and void for contravening Section 4(a) of the RH Law and violating
Section 12, Article II of the Constitution.
Locus Standi
• The OSG attacks the legal personality of the petitioners to file their respective
petitions.
• SC RULING: The rule on standing is a matter of procedure can be relaxed for
non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the
public interest s requires, such as when the matter is of a transcendental
importance of overreaching significance to the society, or of paramount public
interest.
Right to life: Not violated.
• Petitioner’s contentions: Notwithstanding its declared policy against abortion, the

implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees protection
of both the life of the mother and the life of the unborn from conception.
SC RULING:
• Article II, Section 12 of the Constitution states: “The State recognizes the sanctity
of family life and shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and the life of the
unborn from conception.”
• In its plain and ordinary meaning (a canon in statutory construction), the
traditional meaning of “conception” according to reputable dictionaries cited by
the ponente is that life begins at fertilization.
• The framers of the Constitution also intended for (a) “conception” to refer to the
moment of “fertilization” and (b) the protection of the unborn child upon
fertilization.
• In addition, they did not intend to ban all contraceptives for being
unconstitutional; only those that kill or destroy the fertilized ovum would be
prohibited.
o Contraceptives that actually prevent the union of the male sperm and
female ovum, and those that similarly take action before fertilization
should be deemed non-abortive, and thus constitutionally permissible.
• The clear and unequivocal intent of the framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion.
o The RH Law is in line with this intent and actually prohibits abortion.
o The Court finds that the RH Law itself clearly mandates that protection be
afforded from the moment of fertilization.
o The RH Law recognizes that abortion is a crime under Art. 256 of the
Revised Penal Code.
• In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients.
o By using the word “or” in defining abortifacient, the RH Law prohibits not
only drugs or devices that prevent implantation but also those that induce
abortion and induce the destruction of a fetus inside the mother’s womb.
IRR was issued in Grave Abuse of Discretion

• the authors of the IRR gravely abused their office when they redefined the
meaning of abortifacient by using the term “primarily”.
• Recognizing as abortifacients only those that “primarily induce abortion or the
destruction of a fetus inside the mother’s womb or the prevention of the fertilized
ovum to reach and be implanted in the mother’s womb” would pave the way for
the approval of contraceptives that may harm or destroy the life of the unborn
from conception/fertilization.
• This violates Section 12, Article II of the Constitution.
• For the same reason, the definition of contraceptives under the IRR which also
uses the term “primarily”, must be struck down.
Right to health: Not violated.
• PETITIONERS’ CONTENTION: The RH Law provides universal access to

contraceptives which are hazardous to one's health, as it causes cancer (breast
and cervical ) and other health problems. They claim that the right to health is
violated by the RH Law because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies in the National
Drug Formulary and in the regular purchase of essential medicines and supplies
of all national hospitals.
SC RULING:
• Section 15, Article II of the Constitution provides that “The State shall protect and
promote the right to health of the people and instill health consciousness among
them.”
• Contrary to the respondent’s notion, the provisions in the Constitution providing
for the State’s duty to provide for the health of the people are self-executing.
There is no need for legislation to implement these self-executing provisions.
• Some petitioners do not question contraception and contraceptives per se.
Rather, they pray that the status quo under RA 4729 and 5921 be maintained.
These laws prohibit the sale and distribution of contraceptives without the
prescription of a duly-licensed physician.
• The RH Law does not intend to do away with RA 4729 (1966).
o With RA 4729 in place, the Court believes adequate safeguards exist to
ensure that only safe contraceptives are made available to the public.
o In fulfilling its mandate under Sec. 10 of the RH Law, the DOH must keep
in mind the provisions of RA 4729: the contraceptives it will procure shall
be from a duly licensed drug store or pharmaceutical company and that
the actual distribution of these contraceptive drugs and devices will be
done following a prescription of a qualified medical practitioner.
• At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. Consequently, the Court finds
that, at this point, the attack on the RH Law on this ground is premature. It must
determined on a case to case basis.
• Meanwhile, the requirement of Section 9 of the RH Law is to be considered
“mandatory” only after these devices and materials have been tested, evaluated
and approved by the FDA. Congress cannot determine that contraceptives are
“safe, legal, non-abortificient and effective” without the proper scientific
examination.
Freedom of religion and the free exercise clause
• The Court cannot determine whether or not the use of contraceptives or

participation in support of modern RH measures (a) is moral from a religious
standpoint; or, (b) right or wrong according to one’s dogma or belief.
• However, the Court has the authority to determine whether or not the RH Law
contravenes the Constitutional guarantee of religious freedom.
PETITIONERS’ CONTENTION:
• The RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. The use
of public funds for purposes that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring religious freedom.
• The RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners
1] to refer patients who seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information on reproductive health
programs and service, although it is against their religious beliefs and
convictions.
• The RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.
• While the petitioners recognize the guarantee of religious freedom is not

absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of the
right to free exercise of religion and the right to free speech.
SC RULING:
1. RH Law does NOT violate the guarantee of religious freedom when it
mandates the state-sponsored procurement of contraceptives, which
contravene the religious beliefs of the people including the petitioners.
• The State may pursue its legitimate secular objectives without being dictated
upon the policies of any one religion.
• To allow religious sects to dictate policy or restrict other groups would violate
Article III, Section 5 of the Constitution or the Establishment Clause. This would
cause the State to adhere to a particular religion, and thus, establishes a state
religion.
2. The principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz: Section 6. The separation of Church
and State shall be inviolable.
3. The basis of the free exercise clause is the respect for the inviolability of the
human conscience.
o Under this part of religious freedom guarantee, the State is prohibited
from unduly interfering with the outside manifestations of one's belief and
faith.
o In case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality.
• In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.
o Underlying the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.
o The "compelling state interest" test is proper where conduct is involved for
the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others
delayed and far-reaching.
o Only a compelling interest of the state can prevail over the fundamental
right to religious liberty.
o The test requires the state to carry a heavy burden, a compelling one, for
to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed.
o In determining which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide.
• Application to the case: At first glance, it appears that the RH Law recognizes
and respects religion and religious beliefs and convictions. It is replete with
assurances the no one can be compelled to violate the tenets of his religion or
defy his religious convictions against his free will. While the Constitution prohibits
abortion, laws were enacted allowing the use of contraceptives. Consistent with
the principle of benevolent neutrality, their beliefs should be respected.
4. RH Law violates the guarantee of religious freedom by compelling medical

health practitioners, hospitals, and health care providers, under pain of
penalty, to refer patients to other institutions despite their conscientious
objections based on religious or ethical beliefs.
• Sections 7, 23, and 24 of the RH Law violate the religious belief and
conviction of a conscientious objector. They are contrary to Section 29(2),
Article VI of the Constitution or the Free Exercise Clause, whose basis is the
respect for the inviolability of the human conscience.
• he provisions in the RH Law compelling non-maternity specialty hospitals
and hospitals owned and operated by a religious group and health care
service providers to refer patients to other providers and penalizing them if
they fail to do so as well as compelling them to disseminate information and
perform RH procedures under pain of penalty also violate (and inhibit) the
freedom of religion.
o While penalties may be imposed by law to ensure compliance to it, a
constitutionally-protected right must prevail over the effective
implementation of the law.
• Excluding public health officers from being conscientious objectors also
violates the equal protection clause.
o There is no perceptible distinction between public health officers and
their private counterparts.
o The freedom to believe is intrinsic in every individual and the
protection of this freedom remains even if he/she is employed in the
government.
• Using the compelling state interest test, there is no compelling state interest
to limit the free exercise of conscientious objectors.
o There is no immediate danger to the life or health of an individual in
the perceived scenario of the above-quoted provisions. In addition,
the limits do not pertain to life-threatening cases.
• The respondents also failed to show that these provisions are least intrusive
means to achieve a legitimate state objective.
o The Legislature has already taken other secular steps to ensure that
the right to health is protected, such as RA 4729, RA 6365 (The
Population Act of the Philippines) and RA 9710 (The Magna Carta of
Women).
5. RH Law does NOT violate the guarantee of religious freedom by requiring

would-be spouses, as a condition for the issuance of a marriage license, to
attend a seminar on parenthood, family planning, breastfeeding and infant
nutrition.
• Section 15 of the RH Law requiring it is a reasonable exercise of police power
by the government.
• The law does not even mandate the type of family planning methods to be
included in the seminar. Those who attend the seminar are free to accept or
reject information they receive and they retain the freedom to decide on
matters of family life without the intervention of the State.
Right to privacy of the Family (marital privacy and autonomy): VIOLATED.
• Section 23(a)(2)(i) of the RH Law, which permits RH procedures even with only
the consent of the spouse undergoing the provision (disregarding spousal
content), intrudes into martial privacy and autonomy and goes against the
constitutional safeguards for the family as the basic social institution.
• Particularly, Section 3, Article XV of the Constitution mandates the State to
defend: (a) the right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood and (b) the
right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.
o The RH Law cannot infringe upon this mutual decision-making, and
endanger the institutions of marriage and the family.
• Section 7 of RH Law disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the support
of the Government." The right of the parent in upbringing their youth is
superior to that of the State.
• To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It is violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in
forming the foundation of the family and society.
• The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
• The exclusion of parental consent in cases where a minor undergoing a
procedure is already a parent or has had a miscarriage is also anti-family and
violates Article II, Section 12 of the Constitution, which states: “The natural
and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of
the Government.”
• However, a minor may access information (as opposed to procedures) about
family planning services. In addition, an exception may be made in life-
threatening procedures.
Freedom of expression and academic freedom: Not violated.
• The Court declined to rule on the constitutionality of Section 14 of the RH Law,

which mandates the State to provide Age-and Development-Appropriate
Reproductive Health Education.
• Although educators might raise their objection to their participation in the RH
education program, the Court reserves its judgment should an actual case be
filed before it.
• Any attack on its constitutionality and validity of Section 14 of Rh Law is
premature because the Department of Education has not yet formulated a
curriculum on age-appropriate reproductive health education.
• Section 12, Article II of the Constitution places more importance on the role of
parents in the development of their children with the use of the term “primary”.
• While the right of parents in upbringing their youth is superior to that of the State,
it is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. The Constitution makes mention of the
importance of developing the youth and their important role in nation building.
• The legal mandate of the provisions of Section 14 of the RH Law and pertinent
provisions of its IRR, providing not only for the age-appropriate reproductive
health education but also values formation, development of knowledge in self-
protection against discrimination, sexual abuse and violence, etc., supplement,
rather than supplant, the right and duties of the parents in the moral development
of their children.
• By incorporating parent-teacher-community associations, school officials, and
other interest groups in developing the mandatory RH program, it could very well
be said that the program will be in line with the religious beliefs of the petitioners.
Due process: Not violated.
Petitioner’s contentions: The RH Law suffers from vagueness and, thus violates the due
process clause of the Constitution. According to them, Section 23 (a)(l) mentions a
"private health service provider" among those who may be held punishable but does not
define who is a "private health care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private health care institution."
SC RULING:
• However, the definition of “private health care service provider” must be seen in
relation to Section 4(n) of the RH Law which defines a “public health service
provider”. Further, the use of the term "private health care institution" in Section 7 of
the law, instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously
• A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and
differ as to its application.
• In determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to other
parts of the statute.
• It is a rule that every part of the statute must be interpreted with reference to the
context, that is, every part of it must be construed together with the other parts and
kept subservient to the general intent of the whole enactment.
PETITIONERS’ CONTENTION: Section 7 of the assailed legislation exempts hospitals

operated by religious groups from rendering reproductive health service and modern
family planning methods.
SC RULING:
• However, the terms “service” and “methods” are also broad enough to include
providing of information and rendering of medical procedures.
• Thus, hospitals operated by religious groups are exempted from rendering RH service
and modern family planning methods (as provided for by Section 7 of the RH Law) as
well as from giving RH information and procedures.
PETITIONERS’ CONTENTION: The RH Law punishes the withholding, restricting and

providing of incorrect information, but at the same time fails to define "incorrect
information."
SC RULING:
• However, the RH Law also defines “incorrect information”.
• From its plain meaning, the word "incorrect" here denotes failing to agree with a copy
or model or with established rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to coincide with the truth. On
the other hand, the word "knowingly" means with awareness or deliberateness that is
intentional. Used together in relation to Section 23 (a)(1), the terms “incorrect” and
“knowingly” connote a sense of malice and ill motive to mislead or misrepresent the
public as to the nature and effect of programs and services on reproductive health.
• Public health and safety demand that health care service providers give their honest
and correct medical information in accordance with what is acceptable in medical
practice.
• While health care service providers are not barred from expressing their own personal
opinions regarding the programs and services on reproductive health, their right must
be tempered with the need to provide public health and safety. The public deserves
no less.
Equal protection: Not violated.
Petitioner’s contentions: The RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary
target of the government program that promotes contraceptive use.
SC RULING:
• However, to provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection clause. In
fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the
distinct necessity to address the needs of the underprivileged by providing that they
be given priority in addressing the health development of the people.
• The RH Law does NOT only seek to target the poor to reduce their number, since
Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering
from fertility issues and desire to have children. In addition, the RH Law does not
prescribe the number of children a couple may have and does not impose conditions
upon couples who intend to have children. The RH Law only seeks to provide priority
to the poor.
• According to a long line of SC decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed. The purpose of the equal protection clause is to secure
every person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted authorities." "In other words,
the concept of equal justice under the law requires the state to govern impartially, and
it may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
• It, however, does not require the universal application of the laws to all persons or
things without distinction
Furthermore, the exclusion of private educational institutions from the mandatory RH

education program under Section 14 is valid and constitutional. There is a need to
recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of
reproductive health education.
Prohibition against involuntary servitude: Not violated.
PETITIONERS’ CONTENTION: Section 17 of RH Law requiring private and non-

government health care service providers to render 48 hours of pro bono reproductive
health services, actually amounts to involuntary servitude because it requires medical
practitioners to perform acts against their will.
SC RULING:
• However, it does NOT amount to involuntary servitude.
• First, the practice of medicine is undeniably imbued with public interest that it is both
the power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Practice of medicine is not a right but a privilege
burdened with conditions as it directly involves the very lives of the people. Congress
can prescribe qualifications and conditions for the practice of profession or trdases
which affect the public welfare.
• Second, Section 17 only encourages private and non-government RH service
providers to render pro bono service. Besides the PhilHealth accreditation, no penalty
is imposed should they do otherwise.
• Private and non-government reproductive healthcare service providers also enjoy the
liberty to choose which kind of health service they wish to provide, when, where and
how to provide it or whether to provide it all. Clearly, therefore, no compulsion, force
or threat is made upon them to render pro bono service against their will.
However, conscientious objectors are exempt from Sec. 17 as long as their religious
beliefs do not allow them to render RH service, pro bono or otherwise.
Delegation of authority to the Food and Drug Administration (FDA) :Valid

delegation.
PETITIONERS’ CONTENTION: The petitioners question the delegation by Congress to

the FDA of the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL).
SC RULING:
• The Court finds it valid delegation as the FDA not only has the power but also the
competency to evaluate, register and cover health services and methods under RA
3720 as amended by RA 9711 or the FDA Act of 2009.
• Being the country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary powers
and functions to make it effective.
• From the declared policy of the RH Law, it is clear that Congress intended that the
public be given only those medicines that are proven medically safe, legal, non-
abortifacient, and effective in accordance with scientific and evidence-based medical
research standards.
Autonomy of Local Governments / ARMM (Autonomous Region in Muslim

Mindanao): NOT Violated.
Petitioners’ contentions: The RH Law infringes upon the powers devolved to local
government units (LGUs) under Section 17 of the Local Government Code since LGC
vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities.
• However, RH Law does NOT infringe upon the autonomy of local governments.
Paragraph (c) of Section 17 of LGC provides a categorical exception of cases
involving nationally-funded projects, facilities, programs and services. Unless a local
government unit (LGU) is particularly designated as the implementing agency, it has
no power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program involves
the delivery of basic services within the jurisdiction of the LGU.
• In addition, LGUs are merely encouraged to provide RH services. Provision of these
services are not mandatory. Therefore, the RH Law does not amount to an undue
encroachment by the national government upon the autonomy enjoyed by LGUs.
• Article III, Sections 6, 10, and 11 of RA 9054 or the Organic Act of the ARMM merely
delineates the powers that may be exercised by the regional government. These
provisions cannot be seen as an abdication by the State of its power to enact
legislation that would benefit the general welfare.
Natural Law
• With respect to the argument that the RH Law violates natural law, suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law.
• Our only guidepost is the Constitution.
• While every law enacted by man emanated from what is perceived as natural
law, the Court is not obliged to see if a statute, executive issuance or ordinance
is in conformity to it.
• To begin with, it is not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent rights espoused by
theorists, philosophers and theologists. The jurists of the philosophical school are
interested in the law as an abstraction, rather than in the actual law of the past or
present.
• Unless, a natural right has been transformed into a written law, it cannot serve as
a basis to strike down a law.
3. Do you Care for me?
c. Oposa v. Factoran, 224 SCRA 792

Ponente: Justice Hilario Davide, Jr.
Recit-Ready Digest
Facts: Because of the grave environmental damages being suffered by Mother Earth,
petitioners, all minors, represented & joined by their parents sought for the cancellation
of existing timber license agreements (TLAs) in the country and a cease & desist order
enjoining the DENR to issue new TLAs.
First Issue: W/N this is a class suit.

Held: YES, it is of common and general interest to all Filipinos. Personality of minors to
sue in behalf of the future generations is based on the concept of intergenerational
responsibility.
Second Issue: W/N there is a cause of action.

Held: YES! The right to a healthful ecology is now recognized under the Constitution,
and this carries a correlative duty not to impair the environment. It is within the DENR’s
mandate to advance this right.
Third Issue: W/N the issue raises a political question.

Held: NO! It falls within the Supreme Court’s expanded power under 1987 Constitution.
Fourth Issue: W/N revoking the TLA is violative of the non-impairment clause
Held: NO! All licenses may be revoked or rescinded by executive action. A TLA is not a
contract, property or a property right protested by the due process clause of the
Constitution.
Comprehensive Digest
Facts:
• Petitioners, all minors, are represented & joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc., a
domestic, non-stock and non-profit corporation organized for the purpose of
engaging in concerted action geared for the protection of our environment and
natural resources. The original defendant was then DENR Sec. Fulgencio
Factoran, Jr.. He is susbtituted by the new Secretary, the Hon. Angel Alcala. The
complaint was instituted as a taxpayers' class suit.
• Petitioners argue that 25 yrs ago, the Philippines had 16 million hectares of
rainforests, but satellite images in 1987 saw that only about 1.2 million hectares
remained. Furthermore, only a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.
• Public records reveal that the defendant's predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes. The continued allowance
by DENR of TLA holders to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs, especially the minors and their
successors, who may never see, use, benefit from and enjoy this rare and unique
natural resource treasure.
• The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated are already being felt, experienced
and suffered by the generation of plaintiff adults. 11 were enumerated, among

them are the following:
o Water shortages resulting from drying up of the "aquifer," as well as of rivers,
brooks and streams; recurring spells of drought
o Massive erosion and the consequential loss of soil fertility
o Endangering and extinction of Philippine unique and rare flora & fauna
o Disturbance and dislocation of indigenous cultural communities,
o Increasing velocity of typhoons, coz of absence of windbreakers
o Reduction of earth's capacity to process CO2 gases, catastrophic climatic
changes such as phenomenon of global warming
• Thus, petitioners sought for:
o Cancellation of existing timber license agreements in the country
o Cease and desist order from receiving, accepting, processing, renewing or
approving new timber license agreements.
First Issue: W/N this is a class suit. YES

• The subject matter of the complaint is of common and general interest not just to
several, but to all citizens of the Philippines. Since the parties are so numerous,
it, becomes impracticable, if not totally impossible, to bring all of them before the
court. The Petitioners therein are numerous and representative enough to ensure
the full protection of all concerned interests.
• Petitioners minors assert that they represent their generation as well as
generations yet unborn. They can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned.
o Such a right considers the "rhythm and harmony of nature." Nature means
the created world in its entirety. Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the
present as well as future generations.
o Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced
and healthful ecology. The minors' assertion of their right to a sound
environment constitutes also the performance of their obligation to ensure the
protection of that right for the generations to come
Second Issue: W/N the said petitioners have a cause of action seek the cancellation of
the TLAs and prevent further processing thereof. YES
• Petitioners’ Position # It has proven its cause of action as its complaint contains
sufficient allegations concerning their right to a sound environment based on
Arts. 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of E.O. No.
192 creating the DENR, Sec. 3 of P.D. No. 1151 (Philippine Environmental
Policy), Sec. 16, Art. II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide
in Criminal Law and the concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Sec. 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.
• Factoran’s Position # They have no cause of action against him. Petitioners
failed to allege in their complaint a specific legal right violated by the Secretary
for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as
parens patriae." Such allegations do not reveal a valid cause of action. Plus, the
question of whether logging should be permitted in the country is a political
question, which should be properly addressed to the executive or legislative
branches of Government.
Held: Yes. Petitioners have adequate Cause of Action, showing violation of their
rights
• The complaint focuses on one specific fundamental legal right: the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in Sec. 16, Art. II. (“The State shall
protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.”)
• While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter.
o Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation.
o Mandating the rights to a balanced and healthful ecology and to health as
state policies by the Constitution itself highlights their continuing importance
and imposes upon the state a solemn obligation to preserve the first and
protect and advance the second. Otherwise, the day would not be too far
when all else would be lost not only for the present generation, but also for
those to come generations which stand to inherit nothing but parched earth
incapable of sustaining life.
• The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. The said right implies, among
many other things, the judicious management and conservation of the country's
forests.
• EO 192: mandates that the DENR "shall be the primary government agency
responsible for the conservation, management, development and proper use of
the country's environment and natural resources, specifically … licensing and
regulation of all natural resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." The policy is restated in the Admin.
Code of 1987. It stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." There are
other laws paying special attention to the environmental right: PD1151 (PH Envtl
Policy) and PD1152 (PH Envtl Code)
• Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty under its mandate and by virtue
of its powers and functions under E.O. No. 192 and the Administrative Code of
1987 to protect and advance the said right.
Third Issue: W/N the issue on the TLAs raises a political question. NO
• The political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The new provision vests in the
judiciary, and particularly the SC, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts invalid for
lack or excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very
elastic phrase that can expand or contract according to the disposition of the
judiciary.
Fourth Issue: W/N the prayer sought is violative of the non-impairment (of contracts)
clause. NO
• Petitioners’ Position # It does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be considered protected
by the said clause, it is well settled that they may still be revoked by the State
when the public interest so requires.
• Factoran’s Position # The same cannot be done by the State without due
process of law. Once issued, a TLA remains effective for a certain period of time,
usually for 25 years. During its effectivity, it can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated
the terms of the agreement or other forestry laws & regulations
Held: NO, all licenses may thus be revoked or rescinded by executive action. A
Timber License Agreement is not a contract, property or a property right protested
by the due process clause of the Constitution.
• Factoran would have acted with utmost infidelity to the government by providing
undue and unwarranted benefits and advantages to the timber license holders
because he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in policy
and the demands of public interest and welfare.
• Sec. 20 of the Forestry Reform Code must be read in every TLA: That when the
national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege
granted herein
• All licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause
of the Constitution.
o A timber license is an instrument by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is promoted.
It is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn if dictated by public
interest or public welfare as in this case.
o A license is merely a permit or privilege to do what otherwise would be
unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right; nor is it taxation.
Thus, this Court held that the granting of license does not create irrevocable
rights, neither is it property or property rights.
• Assuming TLAs are contracts, the instant case does not involve a law or even an
executive issuance declaring the cancellation or modification of existing TLAs.
Hence, the non-impairment clause cannot as yet be invoked.
• Further, even if it was a law, etc, it could have only been passed in the exercise
of the police power of the state for the purpose of advancing the right of the
people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. The non-impairment clause must yield to the
police power of the state.
• It is difficult to imagine how the non-impairment clause could apply with respect
to the prayer to enjoin DENR from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract would
have as of yet existed in the other instances. Moreover, with respect to renewal,
the holder is not entitled to it as a matter of right.
d. Resident Marine Mammals v. Sec. Reyes, GR No. 180771, April 21, 2015
Ponente: Leonardo-De Castro, J.
RECIT-READY VERSION: The Phil. Gov’t, through the DOE, entered into a service
contract (SC-46) with JAPEX for the exploration, development, and exploitation of
petroleum resources within Tañon Strait. The Tañon Strait is a narrow passage of water
situated between Negros and Cebu, rich biodiversity of marine life, including endangered
species of dolphins and whales. It was declared as a protected area in 1988; therefore,
any activity outside the scope of its management plan may only be implemented
pursuant to an ECC secured after undergoing an EIA to determine the effects of on its
ecological system. The EMB granted an ECC to DOE and JAPEX, so JAPEX began to
drill an exploratory well. Due to these developments, petitioners filed petitions under
Rule 65 of the Rules of Court before the Supreme Court to enjoin the implementation of
SC-46 for violation of the 1987 Constitution and other various laws. Issues: (1) locus
standi (legal standing) of petitioners Resident Marine Mammals and the Stewards; and
(2) the legality of SC-46. Ruling: (1) Petitioners have legal standing. Locus standi in
environmental cases has been given a more liberalized approach. Recently, the Court
passed the landmark Rules of Procedure for Environmental Cases, which allow for a
“citizen suit,” and permit any Filipino citizen to file an action before our courts for
violations of our environmental laws, on the principle that humans are stewards of
nature. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that
there may be possible violations of laws concerning the habitat of the Resident Marine
Mammals, are therefore declared to possess the legal standing to file this petition. (2)
SC-46 is invalid. The Court, in the case of La Bugal, explained the constitutional
requirements of a valid service contract: (a) the service contract shall be crafted in
accordance with a general law; (b) the President shall be the signatory for the
government; and (c) within 30 days, the President shall report it to Congress to give that
branch of government an opportunity to look over the agreement and interpose timely
objections, if any. While PD 87 may serve as the general law upon which a service
contract for petroleum exploration and extraction may be authorized, the exploitation and
utilization of this energy resource may be allowed only through a law passed by
Congress, since the Tañon Strait is a NIPAS area. Further, the absence of the two other
conditions, that the President be a signatory to SC-46 and that Congress be notified of
such contract, renders it null and void.
COMPREHENSIVE DIGEST
FACTS:
The case
• This case involves 2 consolidated Petitions filed under Rule 65 of the Rules of
Court, concerning Service Contract No. 46 (SC-46), which allowed the
exploration, development, and exploitation of petroleum resources within Tañon
Strait, a narrow passage of water situated between Negros and Cebu.
• The petitions seek (1) to enjoin respondents from implementing SC-46 and to
have it nullified for violation of the 1987 Constitution and certain international and
municipal laws; (2) to nullify the Environmental Compliance Certificate (ECC)
issued by the Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources (DENR), Region VII in connection with SC-
46; (3) to prohibit respondents from implementing SC-46; and (4) to compel
public respondents to provide petitioners access to the pertinent documents
involving the Tañon Strait Oil Exploration Project.
The parties
• Petitioners in G.R. No. 180771 (1st petition), collectively referred to as the
“Resident Marine Mammals”, are the toothed whales, dolphins, porpoises, and
other cetacean species, which inhabit the waters in and around the Tañon Strait.
They are joined by Ramos and Eisma-Osorio as their legal guardians and as
friends (collectively known as “the Stewards”) who allegedly empathize with,
and seek the protection of, the aforementioned marine species.
• Petitioners in G.R. No. 181527 (2nd petition) are the Central Visayas Fisherfolk
Development Center (FIDEC), a non-governmental organization established for
the welfare of the marginal fisherfolk in Region VII; and Engarcial, Yanong and
Labid, in their personal capacities and as representatives of the subsistence
fisherfolk of the municipalities of Aloguinsan and Pinamungajan, Cebu.
• Respondents in both petitions are the Angelo Reyes, then Department of Energy
(DOE) Secretary; Jose Atienza then DENR Secretary; then DENR Regional
Director and Chairman of the Tañon Strait Protected Seascape Management
Board (PAMB); Japan Petroleum Exploration Co., Ltd. (JAPEX), a company
organized and existing under the laws of Japan with a Philippine branch office.
Factual antecedents
• On June 13, 2002, the Philippine Government, acting through DOE, entered into
a Geophysical Survey and Exploration Contract-I 02 (GSEC-102) with JAPEX.
This contract involved geological and geophysical studies of the Tañon Strait.
• DOE and JAPEX formally converted GSEC-102 into SC-46 for the exploration,
development, and production of petroleum resources in a block covering
approximately 2,850 square km offshore the Tañon Strait. Several months after,
JAPEX conducted seismic surveys in and around the Tañon Strait.
• JAPEX committed to drill one exploration well during the second subphase of the
project. Since the well was to be drilled in the marine waters where the Tañon
Strait was declared a protected seascape in 1988, JAPEX agreed to comply with
the Environmental Impact Assessment (EIA) requirements.
• On March 6, 2007, the EMB granted an ECC to DOE and JAPEX for the offshore
oil and gas exploration project. Months later, JAPEX began to drill an exploratory
well near Pinamungajan town in the western Cebu Province. This drilling lasted
until February 8, 2008.
• It was in view of the foregoing, the petitioners applied to Supreme Court for
redress, via two separate original petitions, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among others, violation
of the 1987 Constitution.
Petitioners’ allegations
• Protesting the adverse ecological impact of the oil exploration activities,
petitioners aver that a study made after the seismic survey showed that the fish
catch reduced drastically by 50-70%. They attribute this “reduced fish catch” to
the destruction of the “payao” (“fish aggregating device” or “artificial reef”).
Petitioners also impute the incidences of “fish kill” observed by some of the local
fisherfolk to the seismic survey. And they further allege that JAPEX’s ECC is
invalid because public consultations with the affected stakeholders, a pre-
requisite to the issuance of the ECC, were not held prior to the ECC’s issuance.
Respondents’ allegations
• Public respondents, through the Solicitor General, contend that petitioners
Resident Marine Mammals and Stewards have no legal standing to file the
present petition; that SC-46 does not violate the 1987 Constitution and the
various laws cited in the petitions; that the ECC was issued in accordance with
existing laws and regulations; that public respondents may not be compelled by
mandamus to furnish petitioners copies of all documents relating to SC-46; and
that all the petitioners failed to show that they are entitled to injunctive relief.
They further contend that the issues raised in these petitions have been rendered
moot and academic by the fact that SC-46 had been mutually terminated by the
parties thereto effective June 21, 2008.
ISSUES:
1. Procedural issue: whether petitioners Resident Marine Mammals and Stewards
have Locus Standi – YES
2. Main issue: whether Service Contract No. 46 is valid – NO
RULING: The “moot and academic principle” is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts have decided cases
otherwise moot and academic under the following exceptions: (1) There is a grave
violation of the Constitution; (2) The exceptional character of the situation and the
paramount public interest is involved; (3) The constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and (4)
The case is capable of repetition yet evading review.
In this case, despite the termination of SC-46, this Court deems it necessary to
resolve these consolidated petitions as almost all of the foregoing exceptions are
present in this case. Both petitioners allege that SC-46 is violative of the Constitution,
the environmental and livelihood issues raised undoubtedly affect the public’s interest,
and the respondents’ contested actions are capable of repetition.
1. Locus Standi of Petitioners Resident Marine Mammals and Stewards

• The primary reason animal rights advocates and environmentalists seek to give
animals and inanimate objects standing is due to the need to comply with the
strict requirements in bringing a suit to court. Our own Rules of Court demand
that parties to a suit be either natural or juridical persons, or entities authorized
by law.
• However, in our jurisdiction, locus standi in environmental cases has been
given a more liberalized approach. The current trend in Philippine legal theory
and jurisprudence moves towards simplification of procedures and facilitating
court access in environmental cases.
• Recently, the Court passed the landmark Rules of Procedure for
Environmental Cases (RPEC), which allow for a “citizen suit,” and permit
any Filipino citizen to file an action before our courts for violations of our
environmental laws. The rationale for this rule is to further encourage the
protection of the environment and enable litigants to enforce their environmental
rights. This rule liberalizes standing for all cases filed enforcing environmental
laws and collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature.
• Although this petition was filed in 2007, before the effectivity of the RPEC, it has
been consistently held that rules of procedure may be retroactively applied to
actions pending at the time of their passage and will not violate any right of a
person as there is no vested rights in rules of procedure.
• Moreover, even before the RPEC, this Court had already taken a permissive
position on the issue of locus standi in environmental cases. In Oposa v.
Factoran, Jr., we allowed the suit to be brought in the name of generations yet
unborn “based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned.” Furthermore, we said
that the right to a balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is assumed to exist from
the inception of humankind, carries with it the correlative duty to refrain
from impairing the environment.
• The Stewards are joined as real parties in the Petition and not just in
representation of the named cetacean species. The Stewards, Ramos and
Eisma-Osorio, having shown in their petition that there may be possible
violations of laws concerning the habitat of the Resident Marine
Mammals, are therefore declared to possess the legal standing to file this
petition.
2. Legality of Service Contract No. 46
A. Service Contract No. 46 vis-à-vis Section 2, Article XII of the 1987 Constitution
• Paragraph 4, with the safeguards in place, is the exception to paragraph

1, Section 2 of Article XII.1 (read provision below)
1
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
• The following are the safeguards this Court enumerated in the case of La
Bugal-B 'laan Tribal Association, Inc. v. Ramos:
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant thereof is
subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a

general law that will set standard or uniform terms, conditions and
requirements, presumably to attain a certain uniformity in provisions
and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government

because, supposedly before an agreement is presented to the
President for signature, it will have been vetted several times over at
different levels to ensure that it conforms to law and can withstand
public scrutiny.
(3) Within thirty days of the executed agreement, the President

shall report it to Congress to give that branch of government an
opportunity to look over the agreement and interpose timely
objections, if any.
• Adhering to the aforementioned guidelines, this Court finds that SC-46 is

indeed null and void for noncompliance with the requirements of the
1987 Constitution.
General law on oil exploration

• The disposition, exploration, development, exploitation, and utilization of
indigenous petroleum in the Philippines are governed by Presidential
Decree No. 87 (PD 87) or the Oil Exploration and Development Act of
1972.
• Contrary to the petitioners’ argument, PD 87, although enacted in 1972,
before the 1987 Constitution, remains to be a valid law unless otherwise
repealed. This Court could not simply assume that while PD 87 had not yet
been expressly repealed, it had been impliedly repealed. Implied repeals
are not lightly presumed. It is a settled rule that when laws are in conflict
with one another, every effort must be exerted to reconcile them.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.
• Consequently, we find no merit in petitioners’ contention that SC-46 is

prohibited on the ground that there is no general law prescribing the
standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.
• But note must be made at this point that while PD 87 may serve as the
general law upon which a service contract for petroleum exploration
and extraction may be authorized, as will be discussed below, the
exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the
Tañon Strait is a NIPAS (National Integrated Protected Areas System)
area.
President was not the signatory to SC-46 and the same was not submitted to
Congress
• While the Court finds that PD 87 is sufficient to satisfy the requirement of
a general law, the absence of the two other conditions, that the
President be a signatory to SC-46, and that Congress be notified of
such contract, renders it null and void.
• SC-46 should have conformed not only to the provisions of PD 87, but
also to those of the 1987 Constitution.
• Paragraph 4, Section 2, Article XII of the 1987 Constitution requires
that the President himself enter into any service contract for the
exploration of petroleum. SC-46 appeared to have been entered into
and signed only by the DOE through its then Secretary, Vicente S.
Perez, Jr., contrary to the said constitutional requirement.
• Moreover, public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of such
contract.
• While the requirements in executing service contracts in paragraph 4,
Section 2 of Article XII of the 1987 Constitution seem like mere
formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the framers
of the Constitution to “eliminate or minimize the abuses prevalent during
the martial law regime.” Thus, they are not just mere formalities, which
will only render a contract unenforceable but not void, if not complied
with. They are requirements placed, not just in an ordinary statute, but in
the fundamental law, the non-observance of which will nullify the contract.
• Under the doctrine of constitutional supremacy, if a law or contract
violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
• As this Court has held in La Bugal, our Constitution requires that the
President himself be the signatory of service agreements with
foreign-owned corporations involving the exploration, development,
and utilization of our minerals, petroleum, and other mineral oils.
• In this case, the public respondents have failed to show that the
President had any participation in SC-46. Their argument that their
acts are actually the acts of then President Macapagal-Arroyo, absent
proof of her disapproval, must fail as the requirement that the President
herself enter into these kinds of contracts is embodied not just in any
ordinary statute, but in the Constitution itself. These service contracts
involving the exploitation, development, and utilization of our
natural resources are of paramount interest to the present and
future generations. Hence, safeguards were put in place to insure
that the guidelines set by law are meticulously observed and
likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has
authorized or approved of these service contracts herself.
• Even under the provisions of PD 87, it is required that the DOE obtain the
President’s approval for the execution of any contract under said statute.
B. Service Contract No. 46 vis-a-vis Other Laws

• Although we have already established above that SC-46 is null and void for
being violative of the 1987 Constitution, it is our duty to still rule on the legality
of SC-46 vis-a-vis other pertinent laws, to serve as a guide for the
Government when executing service contracts involving not only the Tañon
Strait, but also other similar areas.
• While the petitioners allege that SC-46 is in violation of several laws, including
international ones, their arguments focus primarily on the protected status of
the Tañon Strait, thus this Court will concentrate on those laws that pertain
particularly to the Tañon Strait as a protected seascape.
• The Tanon Strait is a narrow passage of water bounded by the islands of
Cebu in the East and Negros in the West. It harbors a rich biodiversity of
marine life, including endangered species of dolphins and whales. It was set
aside and declared a protected area under the category of Protected
Seascape.
• Under Proclamation No. 2146, the Tañon Strait is an environmentally
critical area, having been declared as a protected area in 1988; therefore,
any activity outside the scope of its management plan may only be
implemented pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological system.
• The public respondents argue that they had complied with the procedures in
obtaining an ECC103 and that SC-46 falls under the exceptions in Section 14
of the NIPAS Act, due to the following reasons: (1) The Tañon Strait is not a
strict nature reserve or natural park; (2) Exploration is only for the purpose of
gathering information on possible energy resources; and (3) Measures are
undertaken to ensure that the exploration is being done with the least damage
to surrounding areas. We do not agree.
• It is true that the restrictions found under the NIPAS Act are not without
exceptions. However, while an exploration done for the purpose of
surveying for energy resources is allowed under Section 14 of the NIPAS
Act, this does not mean that it is exempt from the requirement to
undergo an EIA under Section 12.
• Surveying for energy resources under Section 14 is not an exemption
from complying with the EIA requirement in Section 12; instead, Section
14 provides for additional requisites before any exploration for energy
resources may be done in protected areas.
• The public respondents themselves admitted that JAPEX only started to

secure an ECC prior to the second sub-phase of SC-46, which required
the drilling of an oil exploration well. This means that when the seismic
surveys were done in the Tañon Strait, no such environmental impact
evaluation was done. Unless seismic surveys are part of the
management plan of the Tañon Strait, such surveys were done in
violation of Section 12 of the NIPAS Act and Section 4 of Presidential
Decree No. 1586. The respondents’ subsequent compliance with the EISS
for the second sub-phase of SC-46 cannot and will not cure this
violation.
• While PD 87 may serve as the general law upon which a service contract
for petroleum exploration and extraction may be authorized, the
exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the
Tañon Strait is a NIPAS area. Since there is no such law specifically
allowing oil exploration and/or extraction in the Tañon Strait, no energy
resource exploitation and utilization may be done in said protected
seascape.
Dispositive Portion: WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527
are GRANTED, Service Contract No. 46 is hereby declared NULL AND VOID for
violating the 1987 Constitution, Republic Act No. 7586, and Presidential Decree
No. 1586.
4. Phillenials All
e. Disini v. Secretary of Justice, GR Nos. 203335, February 18, 2014 and April
22, 2014 (MR)
Ponente: Justice Abad
RECIT-READY DIGEST: Petitioners Disini, et. al. filed a Petition for Certiorari and to 1)
nullify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the
“Cybercrime Prevention Act of 2012” for violating the fundamental rights protected under
the Constitution; and 2) prohibit the Respondents, singly and collectively, from enforcing
the afore-mentioned provisions of the Cybercrime Act.
The Supreme Court declared as UNCONSTITUTIONAL sections 4(c)(3), 1 and 19 of the

Cybercrime Act. The Court also ruled online libel to be CONSTITUTIONAL with respect
to the original author of the post but UNCONSTITUTIONAL only where it penalizes
those who simply receive the post or react to it. It also declared that section 5, which
penalizes anyone who aids or abets the commission of cybercrimes and anyone who
attempts the commission of cybercrimes, is NOT UNCONSTITUTIONAL in relation to
the commission of the following cyber-offenses: Illegal Access; Illegal Interception; Data
Interference; System Interference; Misuse of Devices; Cyber squatting; Computer-
related fraud; Computer-related identity theft and (Cybersex but UNCONSTITUTIONAL
only in relation to the offenses punished by: Child pornography; Unsolicited commercial
communications and online libel. The Court also ruled that section 7 on prosecution
under the Revised Penal Code as well as RA 10175, is UNCONSTITUTIONAL as far as
it authorizes the prosecution of an offender under both section 4(c)(4) (online libel) and
Article 353 of the Revised Penal Code (libel), and also where it pertains to section
§4(c)(2)(child pornography) for being in violation of the prohibition against double
jeopardy. (See complete list of provisions declared constitutional and unconstitutional
below)
Facts:
o Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne Ivy P. Medina,
Janette Toral and Ernesto Sonido, Jr., as taxpayers, filed a Petition for Certiorari
and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, the
petitioners seek to 1) nullify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175,
otherwise known as the “Cybercrime Prevention Act of 2012” for violating the
fundamental rights protected under the Constitution; and 2) prohibit the
Respondents, singly and collectively, from enforcing the afore-mentioned
provisions of the Cybercrime Act.
o Named as Respondents are the Secretary of Justice, the Secretary of the Interior
and Local Government, the Executive Director of the Information
Communications Technology Office, the Chief of the Philippine National Police,
and the Director of the National Bureau of Investigation.
o The consolidated petitions seek to declare several provisions of Republic Act
(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
What is the cybercrime law?

o The cybercrime law aims to regulate access to and use of the cyberspace. Using
his laptop or computer, a person can connect to the internet, a system that links
him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he
needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the
general public or for special audiences like associates, classmates, or friends
and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government agencies,
banks, stock exchanges, trade houses, credit card companies, public utilities,
hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
What is cyberspace?
o It is a system that accommodates millions and billions of simultaneous
and ongoing individual accesses to and uses of the internet.
o The cyberspace is a boon to the need of the current generation for
greater information and facility of communication.
o But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for
mischiefs and crimes.
o Abuse found in cyberspace:
! use the cyberspace for committing theft by hacking into or

surreptitiously accessing his bank account or credit card or
defrauding him through false representations.
! use the cyberspace, too, for illicit trafficking in sex or for exposing
to pornography guileless children who have access to the internet.
! sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories.
! avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements
against him that people can read.
o The government certainly has the duty and the right to prevent these
tomfooleries (such as theft by hacking into or surreptitiously accessing his bank
account or credit card or defrauding him through false representations or illicit
trafficking in sex or for exposing to pornography) from happening and punish
their perpetrators, hence the Cybercrime Prevention Act.
o Petitioner’s contentions: that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their constitutional
rights.
o Respondent’s contention (government): asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent
hurtful attacks on the system.
o Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary restraining
order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
Issues:
1. Whether or not the following provisions of the cybercrime law are
unconstitutional:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
2. Whether or not the related Articles 353, 354, 361, and 362 of the RPC on the
crime of libel are unconstitutional?
Held:
The following are the challenged provisions under RA. 10175 or the Cybercrime
Prevention Act of 2012:
1. Illegal Access [Section 4 (a) (1)]

Section 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a
computer system without right.
• Petitioners allege that the provision fails to meet the strict scrutiny standard and
that Ethical hacking (equivalent to independent auditing) may also be covered by
the prohibition.
• Supreme Court: VALID provision.
• Strict scrutiny standard is applicable only on when there is a possible
infringement of fundamental rights such as free speech. None is involved here.
• Ethical hacking requires an agreement between parties, thus a permission to
"hack" would insulate the hacker from the coverage of this provision.
2. Data Interference [Section 4 (a) (3)]

Data Interference. — The intentional or reckless alteration,
damaging, deletion or deterioration of computer data, electronic
document, or electronic data message, without right, including the
introduction or transmission of viruses.
• Petitioners allege that the provision suffers from overbreadth.
• SC: VALID provision. This provision does not encroach on any fundamental
freedom at all. It simply punishes a form of vandalism.
3. Cyber-squatting [Section 4 (a) (6)]

Cyber-squatting. – The acquisition of a domain name over the
internet in bad faith to profit, mislead, destroy reputation, and
deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration:
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
• Petitioners allege that the provision violates equal protection clause, such that it
will cause a user using his real name to suffer the same fate as those who use
aliases or take another's name.
• SC: VALID provision. There is no violation of the equal protection clause. It is

the purpose that the law condemns, which is the acquiring a domain name in bad
faith.
4. Computer-related Identity Theft [Section 4 (b) (3)]

(b) Computer-related Offenses:
(3) Computer-related Identity Theft. – The intentional acquisition,
use, misuse, transfer, possession, alteration or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided, That if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
• Petitioners allege that the provision violates due process, privacy of

correspondence as well as freedom of the press.
• SC: VALID provision. There is no violation of the aforementioned rights. The
law punishes those who acquire or use identifying information without right
implicitly to cause damage. Petitioners fail to show how the government effort to
curb identity theft violates the right to privacy.
• On the argument that the provision suffers from overbreadth, the specific conduct
proscribed do not intrude into guaranteed freedoms like speech. There is no right
to acquire another's personal data. Furthermore, the theft of identity information
must be intended for an illegitimate purpose.
5. Cybersex [Section 4 (c)(1)]

(c) Content-related Offenses:
(1) Cybersex. — The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system,
for favor or consideration.
• Petitioners allege that the provision violates freedom of expression as it may

cover private communication.
• SC: VALID provision. Bicameral Deliberations show that "for favor or
consideration" must be construed as "engaging in business". Thus, consenting
adults are protected.
6. Child Pornography [Section 4 (c)(2)]

Child Pornography. — The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography
Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that
provided for in Republic Act No. 9775.
• Petitioners allege that the provision expands the scope of the Anti-Child
Pornography Act of 2009 (ACPA).
• SC: VALID provision. Nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a
computer system. Actually, ACPA's definition of child pornography already
covers electronic means. The penalty is higher in the Cybercrime Prevention Act
of 2012, but no one can complain as this is legislative prerogative.
7. Unsolicited Commercial Communications [Section 4 (c)(3)]
Unsolicited Commercial Communications. — The transmission of
commercial electronic communication with the use of computer
system which seek to advertise, sell, or offer for sale products and
services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject. receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order
to induce the recipients to read the message.
• Petitioners allege that this provision violates freedom of expression.

• SC: UNCONSTITUTIONAL provision. Sending "spam" or unsolicited
advertisements is a protected form of speech. What matters is that the recipient
has the option of opening or not opening these mails. To deprive them of such
option will violate their right.
8. Libel [Section 4 (c)(4)]

Libel. — The unlawful or prohibited acts of libel as defined in Article
355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised
in the future.
• Petitioners allege that this provision carries with it "presumed malice" which is
unconstitutional for infringing on freedom of expression. They also allege that
the UNHRC enjoins the Philippines to decriminalize libel.
• SC: VALID provision.
• Jurisprudence has held the Libel under the RPC cannot be prosecuted without
"actual malice", not presumed malice alone.
• For libel against a public officer, the prosecution still has the burden on proving
that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross negligence is not sufficient to establish actual
malice.
• For libel against a private individual, the prosecution need not prove presence of
malice. The law presumes its existence (malice in law). However, defense can
be raised that the defamatory statement was made in good faith.
• The UNHRC does not enjoin the Philippines to decriminalize libel. Free speech,
though protected, is not absolute.
• Libel is not a new crime. In its application in the Cybercrime Prevention Act
of 2012, libel only punishes the author of the libelous statement.
9. Other Offenses (Section 5)

SEC. 5. Other Offenses. — The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.
• Petitioners allege that the provision suffers from overbreadth.

• SC: VALID provision. As a general rule, the overbreadth doctrine does not
apply to penal statutes. However, an exception can be made to penal statues
that encroach on freedom of speech.
• Because of the nature of online expression, it is very difficult to make a clear
delineation as to who is the author of libel (in relation to free speech). Unless
Congress crafts a cyber libel law that takes into account the unique
circumstances and culture in online expressions, this provision may violate
freedom of expression.
• Therefore, Sec. 5 is made applicable to all other offenses in Sec. 4 EXCEPT
on
1. Child Pornography and online Libel.
2. Unsolicited Commercial Communications
3. Online Libel
10. Crimes under the RPC committed through ICT (Section 6)

SEC. 6. All crimes defined and penalized by the Revised Penal Code,
as amended, and special laws, if committed by, through and with the
use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the
penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special
laws, as the case may be.
• Petitioners allege that a higher penalty supplants the penalty in the RPC.
• SC: VALID provision. Sec. 6 merely makes the commission of existing crimes
through the internet a qualifying circumstance.
11. Liability under Other Laws (Section 7)

SEC. 7. Liability under Other Laws. — A prosecution under this Act
shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special laws.
• Petitioners allege that the provision can bring about double jeopardy.
• SC: VALID provision. Sec. 7 merely reiterates the well-settled doctrine that a
single set of facts may be prosecuted and penalized simultaneously under two
separate laws. However, it should be noted the libel under the RPC and
under the Cybercrime Prevention Act of 2012 are just the same offense,
thus double jeopardy can set it. The same it true for child pornography
under ACPA.
12. Penalties (Section 8)
SEC. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act
shall be punished with imprisonment of prision mayor or a fine of at
least Two hundred thousand pesos (PhP200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
• Petitioners allege that the penalties are disproportionate to the crime committed.
• SC: VALID provision. The matter of fixing penalties is a legislative prerogative.
13. Real-Time Collection of Traffic Data (Section 12)

SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement
authorities, with due cause, shall be authorized to collect or record
by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer
system.
Traffic data refer only to the communication’s origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or
is being committed, or is about to be committed: (2) that there are
reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or
to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
• Petitioners:
1. The provision tends to curtail civil liberties or provides opportunities for abuse.
2. Sec. 12 is too broad and do not provide for sufficient standards.
3. The provision suffers from void-for-vagueness
• SC: UNCONSTITUTIONAL provision.
• Undoubtedly, there is a compelling state interest in relation to the purpose of the
law.
• However, data from computers, when gathered in bulk, pooled together, and
analyzed, they reveal patterns of activities which can be sued to create profiles.
Such information belongs to the protected right to privacy, which is both the right
not to have private information disclosed, and the right to live freely without
surveillance and intrusion.
• Furthermore, law enforcements authorities can collect data in real-time "with due
cause". There is no precedent yet as to what may constitute due cause, nor is
there any set standard in the law itself. This is thus akin to a general search
warrant that the Constitution prohibits.
• The void-for-vagueness doctrine applies only to free speech cases which is not
the case here.
14. Preservation of Computer Data (Section 13)

SEC. 13. Preservation of Computer Data. — The integrity of traffic
data and subscriber information relating to communication services
provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content
data shall be similarly preserved for six (6) months from the date of
receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider of
the transmittal document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance.
• Petitioners allege that it constitutes undue deprivation of the right to property as

data preservation is a form of garnishment.
• SC: VALID provision. Data that service providers preserve on orders of law
enforcement agencies are not made inaccessible to users by reason of the
issuance of orders.
15. Disclosure of Computer Data (Section 14)

SEC. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt of
the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.
• Petitioners allege that this is likened to the issuance of a subpoena that is a
judicial function.
• SC: VALID provision. Executive agencies, upon authority of law, can issue
subpoenas as an adjunct to their investigatory powers.
16. Search, Seizure and Examination of Computer Data (Section 15)

SEC. 15. Search, Seizure and Examination of Computer Data. —
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage
medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer
data storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to
enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and
to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
• Petitioners allege that Sec. 15 supplants the established rules on search and
seizure.
• SC: VALID provision. The provision merely enumerates the duties of law
enforcement agencies. It does not supersede existing search and seizure rules
but merely supplements them.
17. Destruction of Computer Data (Section 17)

SEC. 17. Destruction of Computer Data. — Upon expiration of the
periods as provided in Sections 13 and 15, service providers and law
enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and
examination.
• Petitioners allege that the provision is violative of the user's right against
deprivation of property without due process of law.
• SC: VALID provision. It is unclear that the user has a demandable right to
require the service provider to have a copy of the data saved indefinitely. If he
wanted to preserve them, he would have saved them in his computer.
18. Restricting or Blocking Access to Computer Data (Section 19)

SEC. 19. Restricting or Blocking Access to Computer Data. — When
a computer data is prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an order to restrict or
block access to such computer data.
• Petitioners allege that the provision stifles freedom of expression and violates the
right against unreasonable searches and seizures.
• SC: UNCONSTITUTIONAL. No search warrant shall issue except upon
probable cause determined by a judge. The DOJ order cannot substitute for a
judicial search warrant. Moreover, content of computer data can also constitute
speech.
19. Noncompliance (Section 20)

SEC. 20. Noncompliance. — Failure to comply with the provisions of
Chapter IV hereof specifically the orders from law enforcement
authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum
period or a fine of One hundred thousand pesos (Php100,000.00) or
both, for each and every noncompliance with an order issued by law
enforcement authorities.
Petitioner: Sec. 20 constitutes a bill of attainder.

SC: VALID provision. Non-compliance would be punished as a violation of P.D. 1829.
Sec. 20 merely incorporates elements of the offense which are found therein. If
Congress had intended for Sec. 20 to constitute an offense in itself, it would not had
made reference to other provisions of the statute. A judicial determination of guilt is still
required.
20. Cybercrime Investigation and Coordinating Center (Section 24)

SEC. 24. Cybercrime Investigation and Coordinating Center. — There
is hereby created, within thirty (30) days from the effectivity of this
Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
SEC. 26. Powers and Functions. — The CICC shall have the following
powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance for the suppression of real-time commission of
cybercrime offenses through a computer emergency response team
(CERT);
• Petitioners allege that Congress invalidly delegated its powers when it gave the
CICC the power to formulate a national cyber security plan.
• SC: VALID provision. No violation is made. The completeness test and
sufficient standard tests are met.
SUMMARY OF VOID AND UNCONSTITUTIONAL PROVISIONS:

1. Section 4(c)(3) that penalizes the posting of unsolicited commercial
communications
2. Section 12 that authorizes the collection or recording of traffic data in real-time
3. Section 19 that authorizes the DOJ to restrict or block access to suspected
computer data
FURTHER CLARIFICATIONS:
1. Section 5 the penalizes aiding or abetting and attempt in the commission of
cybercrimes is VALID, EXCEPT in the following respects where it is VOID:
a. Section 4(c)(2) on Child Pornography
b. Section 4(c)(3) on Unsolicited Commercial Transactions, and
c. Section 4(c)(4) on Online Libel
2. Online Libel as punished both under the RPC and RA 10175 and Child Pornography
as punished both under RA 9775 and RA 10175 constitutes double jeopardy.
Dispositive Portion:
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in
real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to
restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without
right;
b. Section 4(a)(3) that penalizes data interference, including transmission
of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain
name over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes
defined under the Revised Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a
court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to
cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and
Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL
with respect to the original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who simply receive the post and
react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of
cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section
4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3)
on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,

Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on
online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION
of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of
Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a
violation of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under
both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-
Child Pornography Act of 2009 also constitutes a violation of the same
proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
5. Peace be with you
f. Cruz v. DENR, GR No. 135385, December 6. 2000

Per curiam
RECIT-READY DIGEST: Isagani Cruz and Cesar Europa bring this suit for prohibition
and mandamus, challenging the constitutionality of certain provisions of the Indigenous
Peoples Rights Act of 1997 and its IRR. They argued that specific provisions, relating to
the IPs’ ownership of ancestral domains and lands violated the Regalian doctrine
enshrined in the Constitution. On the other hand, Senator Juan Flavier and the leaders
of the 112 groups of indigenous peoples claim that the IPRA is constitutional contrary to
what the petitioners are stating. The Commission on Human Rights joined in claiming
that the IPRA is an expression of the principle of parens patriae and that the State has
the responsibility to protect and guarantee the rights of those who are at a serious
disadvantage like indigenous peoples. As the votes among the SC Justices were equally
divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated
upon. However, after redeliberation, the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is dismissed.
According to Justice Puno’s separate opinion, these provisions do not violate the
Regalian doctrine because the ancestral domains and lands never belonged to the State
in the first place. Since time immemorial, these domains and lands have belonged to the
IPs, and they have native title over these areas. As such, they were never part of the
public domain.
Facts:
• Isagani Cruz and Cesar Europa filed a case for prohibition and mandamus before
the Supreme Court, assailing the constitutionality of certain provisions of the
Indigenous Peoples’ Rights Act (IPRA) and its implementing rules and
regulations.
• Specifically, they hinge their petition on four points:
o First, they argue that the IPRA provisions concerning the IP’s rights over
ancestral domains and ancestral lands amount to unlawful deprivation of
the State’s ownership over lands of public domain as well as minerals and
natural resources, in violation of the Regalian doctrine enshrined in Sec.
2, Art. XII of the Constitution
o Second, the all-encompassing definition of “ancestral domains” and
“ancestral lands” violate rights of private owners, because they might
include private lands found within said areas
o Third, the powers and jurisdiction of the National Council for Indigenous
Peoples (NCIP), the sole authority to delineate ancestral domains and
lands, and making customary law (of the IPs) applicable to settlement of
disputes involving ancestral domains or lands violate the due process
clause of the Constitution
o And fourth, Rule VII, Part II, Sec. 1 of NCIP Administrative Order No. 1
Series of 1998 (which describes the administrative relationship between
the NCIP and the Office of the President as “lateral but autonomous”)
infringes upon the power of control of the President.
• The Solicitor-General opined that the IPRA was partly unconstitutional insofar as
it grants ownership over natural resources to IPs.
• The Commission on Human Rights, which intervened, on the other hand, is of
the opinion that the IPRA only fulfills the parens patriae responsibility of the State
over the IPs.
Issue:
Whether or not the IPRA is constitutional? – YES.
Held:
IPRA is constitutional. The first time it was up for voting, the vote was split 7-7. During
the vote, it was again split 7-7. Thus, the petition was dismissed pursuant to Sec. 7, Rule
56 of the Rules of Civil Procedure.
Native Title
• The separate opinion of Justice Puno details why the constitutionality of the IPRA
must be upheld. He discusses in length the history of land registration in the
Philippines, and how the land which once belonged to the IPs were forcibly taken
from them by the colonialists. (Note: See end of digest for the historical
background)
• Because the IPs refused to be subject to the colonizers, they went further into the
mountains, where their culture flourished independently of the rapidly
Westernized majority Filipino culture.
• To the IPs, land ownership is communal—land belongs to the whole community,
and each individual or family has limited ownership of land to satisfy their needs.
• This is different from the majority concept of land ownership, where each
individual absolutely owns a tract of land, to the exclusion of all others.
• The IPRA categorically declares ancestral lands and domains held by native title
as never to have been public land—domains and lands held under native title
are, therefore, indisputably presumed to have never been public lands and are
private.
• The purpose of the IPRA is to make sure that the lands which have been
occupied and used by the IP communities since time immemorial remain with
them, to the exclusion of others.
Ancestral Domains and Ancestral Lands

• Ancestral Domains comprise lands, inland waters, coastal areas, and natural
resources therein and includes ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water, mineral and other
natural resources.
• Ancestral Lands are lands held by the IPs under the same conditions as
ancestral domains except that these are limited to lands and that these lands are
not merely occupied and possessed but are also utilized by the IPs under claims
of individual or traditional group ownership. These lands include but are not
limited to residential lots, rice terraces or paddies, private forests, swidden farms
and tree lots.
• The theory is that these ancestral domains and ancestral lands (the two are
different from each other; domains are more general, and may include ancestral
lands within their areas) were never part of public domain in the first place.
• Put differently, the State never exercised ownership over them, so the Regalian
doctrine does not apply.
• In Cariño v. Insual Government, the ownership of IPs over these domains and
lands was expressly recognized by their “native title” over them.
Ownership over Natural Resources

• There is nothing in IPRA that grants to the ICCs/IPs ownership over the natural
resources within their ancestral domains.
• What the IPRA recognizes is the indigenous concept of ownership—which
means that the ancestral domains are private simply because they are not part of
the public domain. However, they remain communally owned property among the
whole IP community.
• IPRA also provides that the IP’s ownership over the ancestral domains are
limited to lands, bodies of water traditionally and actually occupied by IPs, sacred
places, traditional hunting and fishing grounds, and all improvements made by
them at any time within the domains.
• But, it does not include bodies of water not occupied by the ICCs/IPs, minerals,
coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the
traditional fishing grounds, forests or timber in the sacred places, etc. and all
other natural resources found within the ancestral domains. Thus, this does not
violate the State’s ownership of natural resources found within the ancestral
domains.
• Further, the right to negotiate the terms and conditions over the natural resources
covers only their exploration which must be for the purpose of ensuring
ecological and environmental protection of, and conservation measures in the
ancestral domain—it does not extend to the exploitation and development of
natural resources.
Customary law
• Custom is one of the recognized sources of right under our own Civil Code.
• Customary law is a primary, not secondary, source of rights under the IPRA. In
the absence of any applicable provision in the Civil Code, custom, when duly
proven, can define rights and liabilities, and it uniquely applies to ICCs/IPs.
However, the use of customary laws under the IPRA is not absolute, for the law
speaks merely of primacy of use.
• In fact, customary laws, when specifically enacted to become part of statutory
law, must first undergo publication to render them correspondingly binding and
effective as such.
• Further, the application of customary law is limited to disputes concerning
property rights or relations in determining the ownership and extent of the
ancestral domains, where all the parties involved are members of the same
indigenous group. It therefore follows that when one of the parties to a dispute is
a non-member of an indigenous group, or when the indigenous peoples involved
belong to different groups, the application of customary law is not required.
• IPRA grants IPs with ownership and possession of their ancestral domains and
lands, and defines the extent of these lands and domains
• The ownership given is the indigenous concept of ownership under customary
law which traces its origin to native title
• The State, by recognizing the right of tribal Filipinos to their ancestral lands and
domains, has effectively upheld their right to live in a culture distinctly their own.
President’s power of control

• An “independent agency” is an administrative body independent of the executive
branch or one not subject to a superior head of department, as distinguished
from a “subordinate agency” or an administrative body whose action is subject to
administrative review or revision.
• The NCIP, although independent to a certain degree, was placed by Congress
“under the office of the President” and, as such, is still subject to the President’s
power to control and supervision with respect to its performance of administrative
functions.
Chilling effect syndrome

• Invalidation of the statute “on its face” rather than “as applied” is permitted in the
interest of preventing a “chilling” effect on freedom of expression.
• But the only instance where a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression.
SEPARATE OPINIONS:
Justice Puno
• The IPRA Law did not violate the Regalian Theory with the exception of Section
1, Part II, Rule III of the IRR for going beyond the parameters of Section 7 (b) of
the law and for being contrary to Section 2, Article XII of the 1987 Constitution.
• He pointed that the said exception (Sec. 1, Part II, Rule III of the IRR) should be
interpreted as dealing with large-scale exploitation of natural resources and
should be read in conjunction with the Constitution.
• General points:
o The ICCs/IPs own the questioned lands by virtue of native title.
o Native Titles is a different kind of ownership. Its concept of ownership
holds that ancestral domains are both ICCs/IPs private and community
property which belongs to all generations and therefore cannot be sold,
disposed or destroyed.
o Justice Puno pointed out that natural sources within ancestral domains
are not owned by the IPs. IPRA did not specify that it grants the IPs
ownership over all other natural resources found within their ancestral
domains.
Justice Vitug
• The provisions Sections 7 and 57 of the IPRA, in their totality, are, in his view,
beyond the context of the fundamental law and virtually amount to an undue
delegation of State authority over a significant area of the country and its
patrimony.
• The decision of the United States Supreme Court in Cariño v. Insular
Government, 41 Phil 935 (1910), holding that a parcel of land held since time
immemorial by individuals under a claim of private ownership is presumed never
to have been public land and cited to downgrade the application of the regalian
doctrine, cannot override the collective will of the people expressed in the
Constitution.
• The second paragraph of Section 5 of Article XII of the Constitution allowing
Congress to provide “for the applicability of customary laws governing property
rights or relations in determining the ownership and extent of ancestral domains”
does not mean that Congress may enact a law that would simply express that
“customary laws shall govern” and end it there. Had it been so, the Constitution
could have itself easily provided without having to still commission Congress to
do it.
• In fact, according to Justice Vitug, the constitutional aim is to get Congress to
look closely into the customary laws and, with specificity and by proper recitals,
to hew them to, and make them part of, the stream of laws.
Justice Kapunan
• Justice Kapunan sustained the validity of the challenged provisions.
• General points:
o In Philippine constitutional law, the term “indigenous peoples” pertains to
those groups of Filipinos who have retained a high degree of continuity
from pre-Conquest culture.
o The Regalian theory does not negate native title to lands held in private
ownership since time immemorial.
o The mere fact that Section 3(a) of IPRA defines ancestral domains to
include the natural resources, found therein does not ipso facto convert
the character of such natural resources as private property of the
indigenous people. In other words, Section 3(a) serves only as a yardstick
which points out what properties are within the ancestral domains. It does
not confer or recognize any right of ownership over the natural resources
to the indigenous peoples. Its purpose is definitional and not declarative
of a right or title.
o The phrase “private but community property” is merely descriptive of the
indigenous peoples’ concept of ownership as distinguished from that
provided in the Civil Code.
! Civil law: ownership has the following attributes – jus utendi or the
right to receive from the thing that which it produces, jus abutendi
or the right to consume the thing by its use, jus disponendi or the
power to alienate, encumber, transform and even destroy that
which is owned, and jus vindicandi or the right to exclude other
persons from the possession the thing owned.
! IP’s concept of ownership: emphasizes communal or group
ownership. As such, the property held in common “cannot be sold,
disposed or destroyed” because it was meant to benefit the whole
indigenous community and not merely the individual member.
o The concept of native title to natural resources, unlike native title to land,
has not been recognized in the Philippines.
o By the enactment of IPRA, Congress did not purport to annul any and all
Torrens titles within areas claimed as ancestral lands or ancestral
domains.
Justice Mendoza
• The petition does not amount to a justiciable controversy to be subject for
judicial review.
• The duty of the Court to determine whether there has been a grave abuse of
discretion was inserted in Art. VIII, §1 to preclude courts from invoking the
political question doctrine in order to evade the decision of certain cases even
where violations of civil liberties are alleged.
• The judicial power cannot be extended to matters which do not involve actual
cases or controversies without upsetting the balance of power among the
three branches of the government.
• To decline the exercise of jurisdiction where there is no genuine controversy
is not to show timidity but respect for the judgment of a coequal department
of government whose acts, unless shown to be clearly repugnant to the
fundamental law, are presumed to be valid.
Justice Panganiban
• Declared the challenged provisions unconstitutional.
• General points:
o Ancestral lands and ancestral domains are not public lands and have
never been owned by the State.
o Congress in its wisdom may grant preferences and prerogatives to
our marginalized brothers and sisters, subject to the irreducible caveat
that the Constitution must be respected.
o IPRA, however, has provisions that run directly afoul of our
fundamental law from which it claims origin and authority.
o The concerted effort to malign the Regalian Doctrine as a vestige of
the colonial past must fail—our Constitution vests the ownership of
natural resources, not in colonial masters, but in all the Filipino
people.
HISTORICAL BACKGROUND (Justice Puno’s Separate Opinion):
• The “Regalian Doctrine” or jura regalia is a Western legal concept that was
first introduced by the Spaniards into the country through the Laws of the
Indies and the Royal Cedulas.
o The abrogation of the Filipinos’ ancestral rights in land and the
introduction of the concept of public domain were the most immediate
fundamental results of Spanish colonial theory and law.
• The Public Land Act (Act No. 926) operated on the assumption that title to
public lands in the Philippine Islands remained in the government, and that
the government’s title to public land sprung from the Treaty of Paris and other
subsequent treaties between Spain and the United States.
o The term “public land” referred to all lands of the public domain whose
title still remained in the government and are thrown open to private
appropriation and settlement, and excluded the patrimonial property of
the government and the friar lands.
• The Philippine Commission then enacted the Torrens system under Act 496,
or the Land Registration Law of 1903. It placed all public and private lands
in the Philippines under the Torrens system.
o The Torrens system requires that the government issue an official
certificate of title attesting to the fact that the person named is the
owner of the property.
o The certificate of title is indefeasible and imprescriptible and all claims
to the parcel of land are quieted upon issuance of said certificate.
• The delegates to the 1935 Constitutional Convention very well knew that the
concept of State ownership of land and natural resources was introduced by
the Spaniards, however, they were not certain whether it was continued and
applied by the Americans, so to remove all doubts, the Convention approved
that the Regalian doctrine be enshrined in the 1935 Constitution.
• Under the 1973 Constitution, for the first time in Philippine history, the “non-
Christian tribes” or the “cultural minorities” were addressed by the highest law
of the Republic, and they were referred to as “cultural communities.”
However, the Aquino government signified a total shift from the policy of
integration to one of preservation.
• Land titles do not exist in the indigenous peoples’ economic and social
system—the concept of individual land ownership under the civil law is alien
to them. It was to address the centuries-old neglect of the Philippine
indigenous peoples that the Tenth Congress passed and approved the
Indigenous Peoples Rights Act (IPRA) of 1997.
• With the passage of the Indigenous Peoples Rights Act (IPRA), the
indigenous cultural communities or indigenous peoples (ICCs/IPs) were
granted the ownership and possession of their ancestral domains and
ancestral lands, and defines the extent of these lands and domains, and the
ownership given is the indigenous concept of ownership under customary law
which traces its origin to native title.
IMPORTANT TERMS TO REMEMBER:

Indigenous Cultural Communities or Indigenous Peoples (ICCs/IPs) – refer to a group of
people or homogeneous societies who have continuously lived as an organized
community on communally bounded and defined territory.
Ancestral domains –all areas belonging to ICCs/IPs held under a claim of ownership,
occupied or possessed by ICCs/IPs by themselves or through their ancestors,
communally or individually since time immemorial, except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings with government and/or private individuals or
corporations.
Ancestral lands – lands held by the ICCs/IPs under the same conditions as ancestral
domains except that these are limited to lands and that these lands are not merely
occupied and possessed but are also utilized by the ICCs/IPs under claims of individual
or traditional group ownership.
Public land – refers to all lands of the public domain whose title still remained in the
government and is thrown open to private appropriation and settlement, and excluded
the patrimonial property of the government and the friar lands.
Regalian doctrine – the “Regalian Doctrine” or jura regalia is a Western legal concept
that was first introduced by the Spaniards into the country through the Laws of the Indies
and the Royal Cedulas. It refers to royal rights, or those rights which the King has by
virtue of his prerogatives. In essence, the Regalian theory does not negate native title to
lands held in private ownership since time immemorial.
TRIVIA: This case is one of Dean Candelaria’s favorite cases. He defended the
Indigenous Peoples’ Rights Act and argued this case on behalf of the National
Commission on Indigenous Peoples and the Indigenous communities before the
Supreme Court in Baguio.
Excerpts: A Lecture on Public International Law by Associate Dean Sedfrey M.

Candelaria (8/15/09)
Dean Candelaria: “Now when you claim the airspace above your territory, you have
exclusive sovereignty over the airspace. You can regulate the entry of flights, and this is
subject to the Paris Convention; there is an international convention on this. When the
IPRA was being questioned before the SC in 1999, mining companies questioned the
question of ancestral domain; it covered vast areas. Be aware of that because it might
be asked in the bar. Since 1999 and 2000 when it was declared valid because it lacked
the required number of votes to declare it unconstitutional, no examiner has ever dared
to ask what is the concept of ancestral domain under constitutional law, but you have the
case of Cruz v. DENR. We argued that case on behalf of the National Commission on
Indigenous Peoples and the indigenous communities, and we had to defend the law
against, partly the Solicitor General, because the SolGen was not in agreement with the
interpretation of the NCIP and the non-government groups about the extent of ancestral
domain. But there was one naughty question; I think it was from Justice Panganiban,
that time when he asked me about airspace. He asked, “Do we need permits when you
want to go above the ancestral domain?” Because there was one provision in the IPRA
that the airspace above the ancestral domain may be claimed by the indigenous
peoples, but that question will have to be answered in light of the definition of national
territory; that when it comes to regulating the airspace, the Paris convention would give
absolute sovereignty over the State, and of course it will be the State, and not the
indigenous community, who will regulate the entry of planes above the ancestral domain.
That is national in character so, it was really easy to answer that, except that it was very
naughty as if the ancestral domain already covered everything and that’s why it was
being attacked as being unconstitutional.”
g. Province of North Cotabato v. GRP Panel, GR Nos. 183591, October 14,

2008
Ponente: Justice Carpio Morales
RECIT-READY DIGEST: This is a consolidated case about the validity of the

negotiations between the government and MILF concerning the creation and recognition
of the Bangsamoro Juridical Entity as embodied in the MOA-AD. The main body of the
MOA-AD is divided into four strands, namely, Concepts and Principles, Territory,
Resources, and Governance. On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia. Invoking the right to information on matters of public
concern, petitioners seek to compel respondents to disclose and furnish them the
complete and official copies of the MOA-AD including its attachments, and to prohibit the
slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD
and the holding of a public consultation thereon. The SC held that it is a matter of public
concern. Thus, it falls under the right to information mandated by the Constitution.
The court ruled that:

• The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid symmetry with the state policy of full
public disclosure of all its transactions involving public interest under Sec. 28,
Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature, subject only
to reasonable safeguards or limitations as may be provided by law.
• The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
• An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
• At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the people's right to be consulted on relevant matters relating to
the peace agenda.
o One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
o Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
o Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of
1997 provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance of
the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
• The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.
• In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion
of positive duty and a virtual refusal to perform the duty enjoined.
Facts:
• In the present controversy is the Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the Tripoli Agreement on Peace of 2001 between
the GRP and MILF which was scheduled to be signed on August 5, 2008 in
Kuala Lumpur, Malaysia
• MOA-AD, which dwells on the Ancestral Domain Aspect, is a significant
part of a series of agreements undertaken following the implementation of
the Security Aspect in August 2001 and Humanitarian, Rehabilitation and
Development Aspect in May 2002
• The present petitions allege that respondents GRP Peace Panel on Ancestral
Domain and Presidential Adviser on Peace Process (PAPP) Gen. Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings.
• GR No. 183591: petitioners invoke right to information on matters of
public concern, seeking to compel respondents to disclose and furnish
them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending
the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon.
• GR No. 183752: same as above and in addition, pray that the City of
Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity
• Additional petitions pray that respondents be enjoined from signing MOA-AD and
declare it as unconstitutional, null and void and without operative effect
• By Resolution of August 4, 2008, the Court issued a TRO commanding and
directing public respondents and their agents to cease and desist from formally
signing the MOA-AD. The Court also required the Solicitor General to submit to
the Court and petitioners the official copy of the final draft of the MOA-AD, to
which she complied
Factual Antecedents
• MILF: rebel group established in March 1984 when, under the leadership of the
late Salamat Hashim, it splintered from the Moro National Liberation Front
(MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic
basis towards Marxist-Maoist orientations.
• A long process of negotiation and the concluding of several prior agreements
between the GRP and MILF beginning in 1996 preceded the MOA-AD.
• July 18, 1997: signed the Agreement on General Cessation of Hostilities
• August 27, 1998: signed the General Framework of Agreement of Intent
• Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process.
• End of 1999 to early 2000: Pres. Estrada declared and carried out an "all-
out-war" against the MILF when the MILF attacked a number of
municipalities in Central Mindanao and took control of the town hall of
Kauswagan, Lanao del Norte (March 2000)
• When PGMA assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. MILF
initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF convened its
Central Committee to seriously discuss the matter and decided to meet with the
GRP.
• March 24, 2001: parties met in Kuala Lumpur with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement
on the General Framework for the Resumption of Peace Talks Between the GRP
and the MILF. The MILF thereafter suspended all its military actions.
• June 20-22, 2001: formal peace talks between the parties were held in Tripoli,
the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following
aspects of the negotiation:
• Security Aspect
! Implementing Guidelines were signed on August 5-7, 2001 during
second round of peace talks in Cyberjaya, Malaysia which lead to
ceasefire status between parties
• Rehabilitation Aspect
! Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects signed at Putrajaya, Malaysia on May 7,
2002
• Ancestral Domain Aspect
! Parties simply agreed "that the same be discussed further in their
next meetings”
• Nevertheless, there were still many incidence of violence between government
forces and the MILF from 2002 to 2003.
• Meanwhile, MILF Chairman Salamat Hashim passed away on July 13, 2003 and
was replaced by Al Haj Murad, who was then the chief peace negotiator of the
MILF. Murad's position as chief peace negotiator was taken over by Mohagher
Iqbal.
• 2005: several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form which was
set to be signed on August 5, 2008.
(Note: See end of digest for an overview of the MOA-AD)
Issues:
Procedural issues:
1. WON the constitutionality and legality of the MOA is ripe for adjudication – YES
2. WON petitions have become moot and academic – YES but nevertheless ruled upon
because issue is of paramount public interest
Substantive issues:
1. WON the GRP violated the Constitutional and statutory provisions on public
consultation and the right to information when they negotiated and initiated the MOA-AD
– YES
2. WON the contents of MOA-AD violate Constitution and the laws – YES
Held:
Respondents' motion to dismiss is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the
Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.
Procedural issues: matters for judicial review

• The petitions are ripe for adjudication. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review. The failure of
respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution.
• As the petitions involve constitutional issues which are of paramount public

interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus standi
in keeping with the liberal stance where technicalities of procedure were brushed
aside, with the issues deserving the attention of the Court in view of their
seriousness, novelty, and weight as precedents.
• Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions,
the Court finds that the present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c) the
need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.
• HOWEVER, the Court, finds that the prayers for mandamus have been rendered
moot in view of the respondents' action in providing the Court and the petitioners
with the official copy of the final draft of the MOA-AD and its annexes.
Right to information
• Respondents violated the constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initiated
the MOA-AD.
• The right of access to public documents has been recognized as a self-executory
constitutional right.
• Incorporation of this right in the Constitution is recognition of the fundamental role
of free exchange of information in a democracy. There can be no realistic
perception by the public of the nation's problems, or a meaningful democratic
decision-making if they are denied access to information of general interest.
Information is needed to enable the members of society to cope with the
exigencies of the times.
• Access to information of general interest aids the people in democratic decision-
making by giving them a better perspective of the vital issues confronting the
nation so that they may be able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective manner. It is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.
• Undoubtedly, the MOA-AD subject of the present cases is of public concern,
involving as it does the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.
• Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as
to the executory nature or commercial character of agreements, it is ruled that the
right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction."
• Certainly, a consummated contract is not a requirement for the exercise of the
right to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for the
public to expose its defects.
• Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even
illegal, becomes fait accompli. This negates the State policy of full transparency
on matters of public concern, a situation which the framers of the Constitution
could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively
truncating a basic right enshrined in the Bill of Rights.
• The policy of full public disclosure Art II Sec 28 complements the right of access to
information on matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands
o Art. II Sec. 28: “Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.”
o The policy of public disclosure establishes a concrete ethical principle for
the conduct of public affairs in a genuinely open democracy, with the
people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy. These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials
at all times accountable to the people.
o The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive
the same self-executory nature. Since both provisions go hand-in-hand, it
is absurd to say that the broader right to information on matters of public
concern is already enforceable while the correlative duty of the State to
disclose its transactions involving public interest is not enforceable until
there is an enabling law. Respondents cannot thus point to the absence
of an implementing legislation as an excuse in not effecting such policy.
• An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will.
Envisioned to be corollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
• At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the people's right to be consulted on relevant matters relating to
the peace agenda.
1. Executive Order No. 3 manifestly provides the mechanics for the duty to
disclose information and to conduct public consultation regarding the peace
agenda and process.
– EO No. 3 defines the authority of the GRP Negotiating Panel. The said
executive order requires that "the government's policy framework for
peace, including the systematic approach and the administrative structure
for carrying out the comprehensive peace process be governed by this
Executive Order."
– One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the sentiments,
values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but
by all Filipinos as one community." Included as a component of the
comprehensive peace process is consensus-building and empowerment

for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace
process."
– Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate "continuing" consultations; contrary to respondents' position
that plebiscite is "more than sufficient consultation."
– Further, E.O. No. 3 enumerates the functions and responsibilities of the
Presidential Adviser for Peace Process (PAPP), one of which is to
"conduct regular dialogues with the National Peace Forum (NPF) and
other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on
the progress of the comprehensive peace process."
– E.O. No. 3 mandates the establishment of the NPF to be "the principal
forum for the PAPP to consult with and seek advice from the peace
advocates, peace partners and concerned sectors of society on both
national and local levels, on the implementation of the comprehensive
peace process, as well as for government-civil society dialogue and
consensus-building on peace agenda and initiatives."
– In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information and
disclosure.
– PAPP Esperon committed grave abuse of discretion when he failed to
carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof.
– As for respondents' invocation of the doctrine of executive privilege, it is
not tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes
its official recommendations or before the government proffers its definite
propositions. It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.
o AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD.
2. Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical
to the environment and human ecology including those that may call for the
eviction of a particular group of people residing in such locality, is
implemented therein.
– The LGC chapter on intergovernmental relations puts flesh into this

avowed policy
o Prior Consultations Required. – “No project or program shall be
implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.”
– Lina, Jr. v. Hon. Paño: the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or
projects which are to be implemented in a particular local community.
Among the programs and projects covered are those that are critical to
the environment and human ecology including those that may call for the
eviction of a particular group of people residing in the locality where these
will be implemented.
– The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.
3. Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides
for clear-cut procedure for the recognition and delineation of ancestral domain,
which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous
Peoples.
– The ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives
and destinies.
– The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act,
which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
– Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of their authority.
Doctrine of executive privilege

• The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy.
• In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
Association
• Associative relationship wherein the extent of powers given to BJE exceed those
granted by any local government under present laws, and even go beyond those
of the present ARMM.
• Given that there is a concept of "association" in international law, and the MOA-
AD - by its inclusion of international law instruments in its TOR- placed itself in an
international legal context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD
• Keitner and Reisman state that an association is formed when two states of
unequal power voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a
middle ground between integration and independence.
• In U.S. constitutional and international practice, free association is understood as
an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the
right of independence. It has been said that, with the admission of the U.S.-
associated states to the UN in 1990, the UN recognized that the American model
of free association is actually based on an underlying status of independence.
• In international practice, the "associated state" arrangement has usually been
used as a transitional device of former colonies on their way to full independence
• The MOA-AD contains many provisions which are consistent with the international
legal concept of association, specifically the following: the BJE's capacity to enter
into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in
the ASEAN and the specialized UN agencies, and the continuing responsibility of
the Central Government over external defense.
• These provisions of the MOA indicate, among other things, that the Parties aimed
to vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
• The concept of association is not recognized under the present Constitution for no
province, city, or municipality, not even the ARMM, is recognized under our laws
as having an "associative" relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution
to any local or regional government. It also implies the recognition of the
associated entity as a state. The Constitution, however, does not contemplate any
state in this jurisdiction other than the Philippine State, much less does it provide
for a transitory status that aims to prepare any part of Philippine territory for
independence.
• The BJE is a far more powerful entity than the autonomous region recognized in
the Constitution. It is not merely an expanded version of the ARMM, the status of
its relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of
a state laid down in the Montevideo Convention, namely, a permanent population,
a defined territory, a government, and a capacity to enter into relations with other
states.
Amendments to the Constitution and the laws

• The MOA-AD virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive
can ensure the outcome of the amendment process is through an undue influence
or interference with that process.
o Such constitutional provisions in conflict with MOA-AD are:
! Art X Sec 18: the present geographic area of ARMM and
municipalities of Lanao del Norte which voted for the inclusion in
ARMM during 2001 plebiscite are automatically part of BJE
without need of another plebiscite
! Art X Sec 20: it has extended powers of an autonomous region
since BJE is free to enter into any economic cooperation and
trade relations with foreign countries but in our constitutional
system, only the President has the authority in external relations
and is the country’s sole representative in foreign nations
! Art II Sec 22: associative arrangement does not uphold national
unity for it prepares a portion of Philippine territory into its
independence
! Art II Sec 2: violates generally accepted international laws
• United Nations Declaration on the Rights of Indigenous
Peoples (UN DRIP) do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality
of the BJE, the particular rights and powers provided for in
the MOA-AD such as:
o Guarantee of their own police and internal security
force
o Acknowledgement of the right of indigenous people
to the aerial domain and atmospheric space
o Obligation of the State to grant near-independent
status of an associated state
• MOA-AD states that all provisions thereof which cannot be reconciled with the
present Constitution and laws “shall come into force upon signing of a
comprehensive compact and upon effecting the necessary changes to the legal
framework.”
• The president’s authority is limited to proposing constitutional amendments. She
cannot guarantee to any third party that the required amendments will eventually
be put in place nor even be submitted to a plebiscite. MOA-AD itself presents the
need to amend therein.
• Also, while the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents’ act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
Overview of the MOA-AD

• Parties: GRP and MILF
• Terms of Reference:
o Includes and identifies agreements, statutes, international laws:
! Previous agreements between GRP and MILF stated above
! Agreements between GRP and MNLF
• 1976 Tripoli Agreement

• Final Peace Agreement on the Implementation of the 1976
Tripoli Agreement, signed on September 2, 1996 during
the administration of President Fidel Ramos
! Organic act for the Autonomous Region in Muslim Mindanao
(ARMM)
! Indigenous Peoples Rights Act (IPRA)
! ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries in relation to the UN
Declaration on the Rights of the Indigenous Peoples
! UN Charter
o Includes the generic category of "compact rights entrenchment”
emanating from the regime of dar-ul-mua'hada (or territory under
compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device"
! The "compact rights entrenchment" emanating from the regime of
dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government -
the Philippines being the land of compact and peace agreement -
that partake of the nature of a treaty device, "treaty" being broadly
defined as "any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties which
provides for a framework that elaborates the principles declared in
the [MOA-AD]."
• Main body: divided into four, namely, Concepts and Principles, Territory,
Resources, and Governance
A. Concepts and Principles

• "Bangsamoro people": natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of
conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.
o Includes not only "Moros" as traditionally understood, but all indigenous
peoples of Mindanao and its adjacent islands
o Regarded as "the ‘First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with
foreign nations.
o MOA-AD respects freedom of choice of indigenous peoples. What this
freedom of choice consists in has not been specifically defined.
• "Bangsamoro homeland": the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of occupation.
o Both parties acknowledge that ancestral domain does not form part of the
public domain
o The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw (in the case of Maranaos)
! Sultanates were described as states or "karajaan/kadatuan"
resembling a body politic endowed with all the elements of a
nation-state in the modern sense
! Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others
• "Bangsamoro Juridical Entity" (BJE): granted the authority and jurisdiction over
the Ancestral Domain and Ancestral Lands of the Bangsamoro.
B. Territory
• Territory of Bangsamoro homeland is land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.
• Core of the BJE is defined as the present geographic area of the ARMM which
includes Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
City. Also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.
o Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other.
• BJE shall have jurisdiction over all natural resources within its "internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area
• BJE shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP) south
east and south west of mainland Mindanao
o Within these territorial waters, the BJE and the "Central Government"
(used interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
• Sharing of minerals on the territorial waters between the Central Government
and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement. The activities which the Parties are allowed to conduct
on the territorial waters are enumerated, among which are the exploration and
utilization of natural resources, regulation of shipping and fishing activities, and
the enforcement of police and safety measures.
• No similar provision on the sharing of minerals and allowed activities with respect
to the internal waters of the BJE.
C. Resources
• BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.
• The external defense of the BJE is to remain the duty and obligation of the
Central Government
• The Central Government is also bound to "take necessary steps to ensure the
BJE's participation in international meetings and events" like those of the ASEAN
and the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.
• With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party having
control within its territorial jurisdiction." In times of national emergency, the
Central Government may, for a fixed period and under reasonable terms as may
be agreed upon by both Parties, assume or direct the operation of such
resources.
• Sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.
• Legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or
their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties.
• BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA), and other land
tenure instruments granted by the Philippine Government, including those issued
by the present ARMM
D. Governance
• MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD
• The MOA-AD describes the relationship of the Central Government and the BJE
as "associative," characterized by shared authority and responsibility. And it
states that the structure of governance is to be based on executive, legislative,
judicial, and administrative institutions with defined powers and functions in the
Comprehensive Compact.
• Any provisions requiring "amendments to the existing legal framework" shall take
effect upon signing of the Comprehensive Compact and upon effecting the
aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision since this implies an
amendment to the Constitution.
• BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation,
legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negotiation
of the comprehensive compact.
TRIVIA: Dean Candelaria opines that the MOA-AD is constitutional. He was part of the
GRP Panel. This is one of his favorite cases.
Excerpt: A Lecture on Public International Law by Associate Dean Sedfrey M.

Candelaria (8/15/09)
Dean Candelaria: “Next case, we’ll keep on going back to this next case, is the case of
Province of North Cotabato v. The GRP Panel. October 14, 2008. This was the
Memorandum of Agreement on Ancestral Domain between the GRP and the MILF. I had
a chance to be part of this. In fact, I was impleaded (?) in this case. I was the Chief Legal
consultant; I am not ashamed to say that. In fact, it was one I am pretty much proud of
having gone into that process of crafting the MOA-AD with the panel at that time in the
last few stages. I believe in the document, I believe in the principles of self-determination
of the Bangsa Moro here. What was the MOA-AD? It was a really underappreciated
document because it was politicized when people began to see the possibility of charter-
change, because the document is one which would fit, perhaps in a Federal set-up in
this country. It was an attempt to try to achieve peace in this country, recognizing the
specific culture, specific idiosyncrasy of a community part of the Filipino nation. Sayang,
because its a document that was in the works for about six years by the panel. I sit in the
negotiating panel for the communists; that’s my main work, but for one year, I worked
with the GRP panel for talks with the MILF, so last year when I was discussing this,
sometime August, it was a time that the MOA-AD was up in the SC for oral argument
and we had to argue this on behalf of the document itself, in the SC. The document was
intended to be one of the steps towards the drafting of a comprehensive compact. There
were already two other documents signed between the government and the MILF panel
on security and rehabilitation development. The MOA-AD was supposed to set the
parameters by which a Bangsa Moro Juridical Entity would be put up. Yes, it covered
areas which was supposed to have impact on territory; the waters, airspace. It talked
about national resource developments and the capacity of the Bangsa Moro with certain
countries for economic purposes. It also defined, to a certain extent, governance, which
will be the next round of talk where special courts, as we now have Shari’a , which will
be enhanced in the context of the Bangsa Moro homeland. There will be talks about
possible concepts of citizenship in the context of the Bangsa Moro homeland, but within
a framework called a Federal set-up. So it was really meant to eventually fit into a
broader charter change if federalism would have been proper. Because the ARMM, as it
stands now, probably would not be able to accommodate what the MOA-AD would
propose in a comprehensive compact. So it was one in a series of documents before the
comprehensive compact, and when this was supposed to be finally signed... I say signed
because before August five, before the government left for Kuala Lumpur for that
signing, there was already an initialing of that document. So they initialed the document
in Kuala Lumpur, more than a week before the signing and it was going to be a
ceremonial signing of the parties in Kuala Lumpur with all the delegations and
international community invited: you have donor groups, you have ambassadors,
present in Kuala Lumpur and Governor Pinol and other local government officials like
Lobregat from Zamboanga and Iligan, started to complain saying “we were never
consulted; we did not know of the MOA-AD,” which was not true, because there were
documents showing that they were submitting, in fact, resolutions from local
governments and there were consultations done in Zamboanga and Iligan, but they
denied it publicly to be able to stop the signing, which is not fair because this was almost
four to five years in the making. This was just an attempt to consolidate it and finally to
submit it. So that’s what happened; they went to the SC for a TRO and by the time the
GRP panel... I was not there anymore; I was here, watching what was going to happen
to the TRO. The panel left and they were sent a fax because that morning, a Monday,
the TRO was issued by the SC, and the Malaysian host was left empty-handed. They
have prepared more than... it reminds me of certain events. Two hundred fifty rooms in
Kuala Lumpur for this big thing. The entire nation... national network, in ASEAN, in other
parts of the world, was focused on that because it was one of the few agreements that
would have paved the way for peace in the country. And you have the SC issuing a TRO
because certain politicians in the south said they were not consulted. You know, it was
sad to say that Pinol, during a February ANC (TV Channel) forum on Mindanao, if you
have seen that, was invited in that forum by ANC together with other Mindanao peace
advocates and the former panel, admitted, when he was asked, “Did you actually know
about the document?” Then now he says, after all the damage has been done, “Yes, I
saw it but the resolutions that we had were not into the document.” But he was already
warned, there would be a plebiscite. You have voted twice, against the ARMM
agreement, then you can do so if you want. But you don’t mislead the SC to say that you
were never consulted because there were records to speak of. And then you have a
“Presidentiable” called Mar Roxas, seeing this as an opportunity, the Liberal Party; most
frustrating to see a politician, a Presidentiable, using it as a flatform. Kaya nga sabi nila
meron daw M.A.R. ngayon sa Mindandao; Movement Against Roxas. It’s sad because
they politicized. You may not want the President, but you don’t politicize and issue which
is genuinely a peace instrument for this country. And if that is the kind of President you
will have later on, using it as a framework, I’m sad for a Presidentiable like that, just for
that flatform. Pero sabi n’ya ipaglalaban ko kayo... except Mindanao. Let me go to the
case itself. It lost on an Eight-Seven vote. Why? Because when this document was
actually submitted to the SC, what happened was that the government said, and as a
result of this, as you know, there were certain rogue commanders from the MILF who
went on a rampage, after the TRO was issued. And you know what’s happening now;
the international monitoring team, where you had a ceasefire before, already left, and it
was leaning to displacement in Mindanao. A terrible situation; the latest, of course, and
this is disputed, if you have been reading the papers about what happened, two days
age, the talks have been attempted to be revived. At the time the oral arguments were
being heard here, the SC was given notice by the government; they disbanded the panel
and said, “We will no longer sign the MOAAD.”
The MILF said, “But you have initialled; it is a signed document.” What were the issued
before the SC? And one that relates to treaties. The petitioners against the MOA-AD
said, “You have signed the treaty because you have created a State called the Bangsa
Moro State.” Did we create a State as a result of the MOA-AD? That was the question.
Was it a State in accordance with the Montevideo convention such that an agreement
signed between the MILF panel and the GRP panel amounted to a treaty under
international law? That was the discussion. Well let me be straightforward to this
because we said that this is not a treaty pursuant to the VCLT. While we may want to
achieve peace, the document that you have is one between the government and a State
on one hand, and a non-State entity, on the other hand. So, it is outside the context of
the VCLT. The SC on that point said, Yes. This is not a treaty. Clearly. Of course, the
Bangsa Moro side would have said, “But we are a State. We are a nation.” But of course
that is a matter that has to be proven later on. But legally, that was the argument made.
So, the other matter was that, if the government said, “we will no longer sign this
document”, then the SC should not have continued tackling the substantive aspect which
is the unconstitutional provisions, they say that if you look at the provisions, they are
unconstitutional because they do not fit the Constitution. Precisely; you would need a
possible change in the legal framework of the Constitution. Because what is being put at
the table is higher than what the ARMM actually provides now. But that will wait and
there will be a plebiscite; it is not one that will be self-executing because it must go
through a referendum; it has to go through a Constitutional process. That was clear in
the mind. And the government panel was saying, “if you look at the orders that created
the peace panel way back in Ramos’ time, carried through Estrada and GMA, it’s
consistent. The GRP panel may propose or may recommend to the President possible
changes in law, in policy, or even amendments to the Constitution. But that is not the
context that a proposal is viewed in accordance with Article 17 on amendments because
that is one which will go through the process of the legislature; it is clear in the mind. But
what the government oppositors were saying was that this is already a commitment to
change the Constitution; that’s the interpretation made. And many of the justices, at least
eight of them, including the other seven; many of the justices who voted, also on the part
of the Solicitor General, also had that same interpretation. They may have differed in the
result, but it was really a matter of interpretation because it was clear that the document
was not going to be a final document, it has to go through another process. So on the
matter of treaty, there was no State to speak of; and this has a bearing to our talks now
with the Communist Party of the Philippines. The CCP also does not recognize the
Philippine Constitution. Talks are going on, for the purpose of having changes in the
economic structure, and the political structure of government. They want a coalition
government. And insofar as the Bangsa Moro is concerned, there’s a specific territorial
claim; the ancestral domain concept, which was similar, but not identical to the IPRA or
the indigenous people’s rights concept of ancestral domain. But the communist has a
different concept; they want the entire country. Mahirap naman yon noh? Wala naman
sigurong papayag. But this is the difficulty in peace negotiations, and that’s why it was
very difficult, from the point of view of the panel at that time, to see the role of a court in
the process of negotiations, of treaties, or even agreements at that time. But the SC
came up, nonetheless with a discussion on the unconstitutionality of the MOA-AD in that
regard. So those are the various points raised and as far as the MOA-AD is concerned, it
is not a treaty. That’s at least something you can get from the decision itself: it is not a
treaty in accordance with the VCLT.”
6. Of Pork and Beans
h. Belgica v. Ochoa, GR Nos. 208566, November 19, 2013

Ponente: Justice Perlas-Bernabe
RECIT-READY DIGEST: Before the Court are consolidated petitions which assail the
constitutionality of the PDAF/Pork Barrel System, both the Congressional Pork Barrel
and the Presidential Pork Barrel. The Court ruled that the appropriation for PDAF under
the 2013 General Appropriation Act is unconstitutional for violation of several
constitutional prohibitions (i.e. separation of power, undue delegation of legislative
power, checks and balance, accountability, local autonomy). The Presidential Pork
Barrel, likewise, is an invalid appropriation and the manner of spending constitutes
undue delegation of legislative power to the President. The Supreme Court struck down
the Pork Barrel System as unconstitutional; however, the decision shall be applied
prospectively.
Facts:
• Before the Court are consolidated petitions which assail the constitutionality of
the Pork Barrel System, both the Congressional Pork Barrel and the Presidential
Pork Barrel.
• In the Philippines, the “pork barrel” has been commonly referred to as lump-sum,
discretionary funds of Members of the Legislature, although, its usage would
evolve in reference to certain funds of the Executive.
• On the other hand, the “Presidential Pork Barrel” questioned by the petitioners
include the Malampaya Fund and the Presidential Social Fund.
• The controversy started in 1996 when an anonymous source later identified as
Former Marikina City Romeo Candazo revealed that huge sums of government
money that went into the pockets of legislators as kickbacks.
• In 2004, several citizens sought the nullification of the PDAF as enacted in the
2004 General Appropriations Act for being unconstitutional, but the Supreme
Court dismissed the petition.
• In July 2013, NBI began its probe into allegations that “the government has been
defrauded of some P10 Billion over the past 10 years by a syndicate using funds
from the pork barrel of lawmakers and various government agencies for scores of
ghost projects.” The investigation was spawned by sworn affidavits of six whistle-
blowers who declared that JLN Corporation had swindled billions of pesos from
the public coffers for “ghost projects” using no fewer than 20 dummy non-
government organizations for an entire decade.
Issues:
I. Procedural Issues
1. Whether or not the issues raised in the consolidated petitions involve
an actual and justiciable controversy - YES
2. Whether or not the issues raised in the consolidated petitions are
matters of policy not subject to judicial review – NO. Subject to judicial
review.
3. Whether or not petitioners have legal standing to sue. - YES
4. Whether or not the Court‘s Decision dated August 19, 1994 in G.R.
Nos. 113105, 113174, 113766, and 113888, entitled "Philippine
Constitution Association v. Enriquez" (Philconsa) and Decision dated
April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management"
(LAMP) bar the re-litigation of the issue of constitutionality of the "Pork
Barrel System" under the principles of res judicata and stare decisis. -
NO
II. Substantive Issues – Congressional PB
1. Whether or not the 2013 PDAF Article and all other Congressional
Pork Barrel Laws similar thereto are unconstitutional considering that
they violate the principles of/constitutional provisions on
(a) separation of powers; - YES
(b) non-delegability of legislative power; - YES
(c) checks and balances; - YES
(d) accountability; - YES
(e) political dynasties; and - NO
(f) local autonomy - YES
III. Substantive Issues – Presidential PB
1. Whether or not the phrases (a) "and for such other purposes as may
be hereafter directed by the President" under Section 8 of PD 910,
relating to the Malampaya Funds, and (b) "to finance the priority
infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed
and authorized by the Office of the President of the Philippines" under
Section 12 of PD 1869, as amended by PD 1993, relating to the
Presidential Social Fund, are unconstitutional insofar as they
constitute undue delegations of legislative power. - YES
Held:
I. Procedural Issues
1. Actual and Justiciable Controversy
• Jurisprudence provides that an actual case or controversy is one
which "involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute.
• Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A
question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. It is
a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the
challenged action."
• The requirement of contrariety of legal rights is clearly satisfied by
the antagonistic positions of the parties on the constitutionality of
the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged
funds and the provisions allowing for their utilization – such as the
2013 GAA for the PDAF, PD 910 for the Malampaya Funds and
PD 1869, as amended by PD 1993, for the Presidential Social
Fund – are currently existing and operational; hence, there exists
an immediate or threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
• As for the PDAF, the Court must dispel the notion that the issues
related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot when
there is no more actual controversy between the parties or no

useful purpose can be served in passing upon the merits.125
Differing from this description, the Court observes that
respondents‘ proposed line-item budgeting scheme would not
terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget,
and not the 2013 PDAF Article which, being a distinct subject
matter, remains legally effective and existing.
• Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and academic‘ principle is
not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if:
first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of
repetition yet evading review. – all of which find application in the
case at bar.
2. Matters of Policy: the Political Question Doctrine

• The issues raised before the Court do not present political but
legal questions which are within its province to resolve. A political
question refers to "those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to
the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of
a particular measure.
• The intrinsic constitutionality of the "Pork Barrel System" is not an
issue dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself has
commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political
branches of government are incapable of rendering precisely
because it is an exercise of judicial power. More importantly, the
present Constitution has not only vested the Judiciary the right to
exercise judicial power but essentially makes it a duty to proceed
therewith.
3. Locus Standi
• The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing.
• Petitioners have come before the Court in their respective
capacities as citizen-taxpayers and accordingly, assert that they
"dutifully contribute to the coffers of the National Treasury."
Clearly, as taxpayers, they possess the requisite standing to
question the validity of the existing "Pork Barrel System" under
which the taxes they pay have been and continue to be utilized. It
is undeniable that petitioners, as taxpayers, are bound to suffer
from the unconstitutional usage of public funds, if the Court so
rules. Invariably, taxpayers have been allowed to sue where there
is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or
unconstitutional law, as in these cases.
• Moreover, as citizens, petitioners have equally fulfilled the
standing requirement given that the issues they have raised may
be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public
interest.
4. Res Judicata and Stare Decisis

• Res judicata (which means a "matter adjudged") and stare decisis
non quieta et movere (or simply, stare decisis which means "follow
past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects
of previous but factually similar dispositions to subsequent cases.
• The focal point of res judicata is the judgment. The principle states
that a judgment on the merits in a previous case rendered by a
court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.151 This
required identity is not, however, attendant hereto since Philconsa
and LAMP, respectively involved constitutional challenges against
the 1994 CDF Article and 2004 PDAF Article, whereas the cases
at bar call for a broader constitutional scrutiny of the entire "Pork
Barrel System.
• On the other hand, the doctrine of stare decisis is a bar to any
attempt to re-litigate where the same questions relating to the
same event have been put forward by the parties similarly situated
as in a previous case litigated and decided by a competent court.
Absent any powerful countervailing considerations, like cases
ought to be decided alike. Philconsa was a limited response to a
separation of powers problem, specifically on the propriety of
conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more
holistic examination of (a) the inter-relation between the CDF and
PDAF Articles with each other, formative as they are of the entire
“Pork Barrel System” as well as (b) the intra-relation of post-
enactment measures contained within a particular CDF or PDAF
Article, including not only those related to the area of project
identification but also to the areas of fund release and
realignment. The complexity of the issues and the broader legal
analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application of

the stare decisis principle.
II. Substantive Issue – Congressional Pork Barrel

1.a. Separation of Powers
• Broadly speaking, there is a violation of the separation of powers
principle when one branch of government unduly encroaches on the
domain of another.
• US Supreme Court decisions instruct that the principle of separation
of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the other’s performance of its
constitutionally assigned function"; and "alternatively, the doctrine
may be violated when one branch assumes a function that more
properly is entrusted to another." In other words, there is a violation of
the principle when there is impermissible (a) interference with and/or
(b) assumption of another department‘s functions.
• At its core, legislators – may it be through project lists, prior
consultations or program menus – have been consistently accorded
post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under
the 2013 PDAF Article, the statutory authority of legislators to identify
projects post-GAA may be construed from the import of Special
Provisions 1 to 3 as well as the second paragraph of Special
Provision 4.
• Aside from the area of project identification, legislators have also been
accorded post-enactment authority in the areas of fund release and
realignment. Clearly, these post-enactment measures which govern
the areas of project identification, fund release and fund realignment
are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly
belong to the sphere of budget execution. Indeed, by virtue of the
foregoing, legislators have been, in one form or another, authorized to
participate in – as Guingona, Jr. puts it – "the various operational
aspects of budgeting," including "the evaluation of work and financial
plans for individual activities" and the "regulation and release of funds"
in violation of the separation of powers principle.
• The fundamental rule, as categorically articulated in Abakada, cannot
be overstated – from the moment the law becomes effective, any
provision of law that empowers Congress or any of its members to
play any role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus unconstitutional. That
the said authority is treated as merely recommendatory in nature does
not alter its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the law.
1.b. Non-delegability of Legislative Power

• As an adjunct to the separation of powers principle, legislative power
shall be exclusively exercised by the body to which the Constitution
has conferred the same. In particular, Section 1, Article VI of the 1987
Constitution states that such power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. Based on this provision, it is
clear that only Congress, acting as a bicameral body, and the people,
through the process of initiative and referendum, may constitutionally
wield legislative power and no other.
• Tthe principle of non-delegability should not be confused as a
restriction to delegate rule-making authority to implementing agencies
for the limited purpose of either filling up the details of the law for its
enforcement (supplementary rule-making) or ascertaining facts to
bring the law into actual operation (contingent rule-making).
• In the cases at bar, the Court observes that the 2013 PDAF Article,
insofar as it confers post-enactment identification authority to
individual legislators, violates the principle of non-delegability since
said legislators are effectively allowed to individually exercise the
power of appropriation, which – as settled in Philconsa – is lodged in
Congress.
• Essentially, under the 2013 PDAF Article, individual legislators are
given a personal lump-sum fund from which they are able to dictate
(a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. hus, keeping with the
principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.
1.c. Checks and Balances

• The fact that the three great powers of government are intended to be
kept separate and distinct does not mean that they are absolutely
unrestrained and independent of each other. The Constitution has
also provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the
government. A prime example of a constitutional check and balance
would be the President’s power to veto an item written into an
appropriation, revenue or tariff bill submitted to him by Congress for
approval through a process known as "bill presentment."
• Under the 2013 PDAF Article, the amount of P24.79 Billion only
appears as a collective allocation limit since the said amount would be
further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As
these intermediate appropriations are made by legislators only after
the GAA is passed and hence, outside of the law, it necessarily
means that the actual items of PDAF appropriation would not have
been written into the General Appropriations Bill and thus effectuated
without veto consideration. Moreover, even without its post-enactment
legislative identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a prohibited form
of lump-sum appropriation.
• Hence, in view of the reasons above-stated, the Court finds the 2013
PDAF Article, as well as all Congressional Pork Barrel Laws of similar
operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution
requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.
1.d. Accountability
• To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in
effect, be checking on activities in which they themselves participate.
Also, this very same concept of post-enactment authorization runs
afoul of Section 14, Article VI of the 1987 Constitution. Allowing
legislators to intervene in the various phases of project
implementation renders them susceptible to taking undue advantage
of their own office.
1.e. Political Dynasties

• At the outset, suffice it to state that the provision on prohibition of
dynasties is considered as not self-executing due to the qualifying
phrase "as may be defined by law." In this respect, said provision
does not, by and of itself, provide a judicially enforceable
constitutional right but merely specifies guideline for legislative or
executive action. Therefore, since there appears to be no standing
law which crystallizes the policy on political dynasties for enforcement,
the Court must defer from ruling on this issue.
• The allegation is largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to
propagate political dynasties.
1.f. Local Autonomy

• Congressional Pork Barrel goes against the constitutional principles
on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds
for local development.
• The Court finds an inherent defect in the system which actually belies
the avowed intention of "making equal the unequal." In particular, the
Court observes that the gauge of PDAF and CDF allocation/division is
based solely on the fact of office, without taking into account the
specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not
based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result,
a district representative of a highly-urbanized metropolis gets the
same amount of funding as a district representative of a far-flung rural
province which would be relatively "underdeveloped" compared to the
former. To add, what rouses graver scrutiny is that even Senators and
Party-List Representatives – and in some years, even the Vice-
President – who do not represent any locality, receive funding from
the Congressional Pork Barrel as well. These certainly are anathema
to the Congressional Pork Barrel‘s original intent which is "to make
equal the unequal." Ultimately, the PDAF and CDF had become
personal funds under the effective control of each legislator and given
unto them on the sole account of their office.
• The Court also observes that this concept of legislator control
underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already legally
mandated to "assist the corresponding sanggunian in setting the
direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction." Considering that
LDCs are instrumentalities whose functions are essentially geared
towards managing local affairs, their programs, policies and
resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making
authority except only when acting as a body. The undermining effect
on local autonomy caused by the post-enactment authority conferred
to the latter was succinctly put by petitioners in the following wise:
• With PDAF, a Congressman can simply bypass the local development
council and initiate projects on his own, and even take sole credit for
its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development
of the district, but has even contributed to "further weakening
infrastructure planning and coordination efforts of the government.
III. Substantive Issues – Presidential Pork Barrel
• "An appropriation made by law" under the contemplation of Section

29(1), Article VI of the 1987 Constitution exists when a provision of
law (a) sets apart a determinate or determinable amount of money
and (b) allocates the same for a particular public purpose. These two
minimum designations of amount and purpose stem from the very
definition of the word "appropriation," which means "to allot, assign,
set apart or apply to a particular use or purpose," and hence, if written
into the law, demonstrate that the legislative intent to appropriate
exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization
or appropriation by Congress shall be made, except that it be ‘made
by law,‘" an appropriation law may – according to Philconsa – be
"detailed and as broad as Congress wants it to be" for as long as the
intent to appropriate may be gleaned from the same.
• In this relation, it is apropos to note that the 2013 PDAF Article cannot
be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system
of intermediate appropriations. These intermediate appropriations are
the actual appropriations meant for enforcement and since they are
made by individual legislators after the GAA is passed, they occur
outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the P24.79
Billion allocated for the entire PDAF, but rather the post-enactment
determinations made by the individual legislators which are, to repeat,
occurrences outside of the law. Irrefragably, the 2013 PDAF Article
does not constitute an "appropriation made by law" since it, in its
truest sense, only authorizes individual legislators to appropriate in
violation of the non-delegability principle as afore-discussed.
• Undue delegation regarding the Malampaya Fund: The phrase “and
for such other purposes as may be hereafter directed by the
President” under Section 8 of PD 910 constitutes an undue delegation
of legislative power insofar as it does not lay down a sufficient
standard to adequately determine the limits of the President’s
authority with respect to the purpose for which the Malampaya Funds
may be used. As it reads, the said phrase gives the President wide
latitude to use the Malampaya Funds for any other purpose he may
direct and, in effect, allows him to unilaterally appropriate public funds
beyond the purview of the law.
• Undue delegation regarding Presidential Social Fund: Section 12 of
PD 1869, as amended by PD 1993, indicates that the Presidential
Social Fund may be used “to [first,] finance the priority infrastructure
development projects and [second,] to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed
and authorized by the Office of the President of the Philippines.” The
second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities. The first indicated purpose,
however, gives him carte blanche authority to use the same fund for
any infrastructure project he may so determine as a “priority“. Verily,
the law does not supply a definition of “priority infrastructure
development projects” and hence, leaves the President without any
guideline to construe the same. To note, the delimitation of a project
as one of “infrastructure” is too broad of a classification since the said
term could pertain to any kind of facility. Thus, the phrase “to finance
the priority infrastructure development projects” must be stricken
down as unconstitutional since – similar to Section 8 of PD 910 - it lies
independently unfettered by any sufficient standard of the delegating
law. As they are severable, all other provisions of Section 12 ofPD
1869, as amended by PD 1993, remains legally effective and
subsisting.
NOTE:
• Prayer To Be Furnished List And Detailed Reports Of Official Government

Transactions. – Denied.
• Prayer to Include Matters in Congressional Deliberations. – Denied.
• THE DECISION SHALL BE APPLIED PROSPECTIVELY.
DISPOSITIVE PORTION:
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional

violations discussed in this Decision, the Court hereby declares as
UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past
and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF
Articles and the various Congressional Insertions, which authorize/d legislators –
whether individually or collectively organized into committees – to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as
but not limited to the areas of project identification, modification and revision of project
identification, fund release and/or fund realignment, unrelated to the power of
congressional oversight; (c) all legal provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to legislators
from which they are able to fund specific projects which they themselves determine; (d)
all informal practices of similar import and effect, which the Court similarly deems to be
acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the
phrases (1) "and for such other purposes as may be hereafter directed by the President"
under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of Presidential Decree No. 1869,
as amended by Presidential Decree No. 1993, for both failing the sufficient standard test
in violation of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby
declared to be PERMANENT. Thus, the disbursement/release of the remaining PDAF
funds allocated for the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for such other purposes
as may be hereafter directed by the President" pursuant to Section 8 of Presidential
Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of Presidential
Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time
this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only
by Special Allotment Release Orders (SAROs), whether obligated or not, are hereby
ENJOINED. The remaining PDAF funds covered by this permanent injunction shall not
be disbursed/released but instead reverted to the unappropriated surplus of the general
fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall
remain therein to be utilized for their respective special purposes not otherwise declared
as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the
Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the
availments and utilization of the funds subject of these cases. Petitioners‘ access to
official documents already available and of public record which are related to these
funds must, however, not be prohibited but merely subjected to the custodian‘s
reasonable regulations or any valid statutory prohibition on the same. This denial is
without prejudice to a proper mandamus case which they or the Commission on Audit
may choose to pursue through a separate petition. The Court also DENIES petitioners
prayer to order the inclusion of the funds subject of these cases in the budgetary
deliberations of Congress as the same is a matter left to the prerogative of the political
branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within
the bounds of reasonable dispatch, investigate and accordingly prosecute all
government officials and/or private individuals for possible criminal offenses related to
the irregular, improper and/or unlawful disbursement/utilization of all funds under the
Pork Barrel System. This Decision is immediately executory but prospective in effect.
i. Araullo v. Hon President Aquino III, GR Nos. 209287, July 1, 2014 and
February 3, 2015 (MR)
Ponente: Bersamin, J.
RECIT-READY DIGEST: Petitioners are assailing the constitutionality of the

Disbursement Acceleration Program and National Budget Circular 541 (NBC No. 541)
and other related issuances of the Department of Budget and Management
implementing the DAP. Petitioners assail that the DAP is against Sec 29 Par 1 of Article
VI of the 1987 Constitution “no money shall be paid out of the Treasury except in
pursuance of an appropriation made by law.” Petitioners argue that the DAP
contravened this provision by allowing the Executive branch of Government to allocate
public funds in the guise of the President exercising his constitutional authority under
Section 25 (5) of the 1987 Constitution but in effect overriding on the power of the
Congress to protect the purse of the nation. The court held that although the President
had the power to adopt policies such as the DAP to stimulate economic growth, the
implementation of the DAP was unconstitutional as it did not fit into the definition of
savings under the GAA, it entailed more than augmentation, and it had cross border
transfer of funds which were prohibited.
Facts:
• On Sept 25, 2013 Sen. Jinggoy Estrada delivered a privilege speech in Senate
to reveal that some senators including himself, received an additional allotment
of P50Million as “incentive” for voting in favor of the impeachment of Chief
Justice Renato C. Corona
• Secretary Florencio Abad of DBM issued a public statement where he explained
that the funds released to the Senators had been part of DAP, a program
designed by DBM to ramp up spending in order to accelerate economic
expansion.
o He clarified that the funds has been released to senators in response to
their letter of request for funding
o He explained that DAP has already been instituted in 2011 to ramp up
spending as sluggish disbursements has caused GDP to slow down
o He clarified that funds from DAP were usually taken from:
1. Unreleased appropriations under Personnel Services
2. Unprogrammed Funds
3. Carry-over Appropriations unreleased from Previous Year
4. Budgets for Slow-moving items or projects that had been
realigned to support faster-disbursing projects
• DBM listed the following as legal bases for DAP’s use of savings:
(1) Section 25(5), Article VI of the 1987 Constitution, which granted to the
President the authority to augment an item for his office in the
general appropriations law
(2) Section 49 (Authority to Use Savings for Certain Purposes) and
Section 38 (Suspension of Expenditure Appropriations), Chapter
5, Book VI of Executive Order (EO) No. 292 (Administrative Code
of 1987); and
(3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013,
particularly their provisions on the (a) use of savings; (b)
meanings of savings and augmentation; and (c) priority in the use
of savings.
• Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other.
• During the oral arguments held on November 19, 2013, the Court directed Sec.
Abad to submit a list of savings brought under the DAP
• In compliance, the OSG submitted several documents which came in seven
evidence packets, as follows:
(1) A certified copy of the Memorandum for the President dated June
25, 2012
(2) Circulars and orders, which the respondents identified as related to
the DAP : NBCS, DBM circulars, COA-DBM Joint Circulars,
(3)A breakdown of the sources of savings, including savings from
discontinued projects and unpaid appropriations for compensation from
2011 to 2013
Issue:
Procedural Issue:
A. W/N certiorari, prohibition, and mandamus are the proper remedies to assail
the constitutionality and validity of DAP, NBC No. 541, and all other executive
issuances implementing the DAP. # Yes
- W/N there is a controversy ripe for judicial determination, and # Yes
- W/N the petitioners have standing on the issue. # Yes
Substantive Issue:
B. W/N DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides:
“No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.” # NO
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
a. They treat the unreleased appropriations and unobligated allotments
withdrawn from government agencies as “savings” as the term is used in
Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012 and
2013; # Yes
b. They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department # Yes
c. They “augment” discretionary lump sum appropriations in the GAAs.
#Yes
D. W/N DAP violates:
(1) the Equal Protection Clause, # court cannot speculate
(2) the system of checks and balances, and # Yes
(3) the principle of public accountability enshrined in the Constitution considering
that it authorizes the release of funds upon the request of legislators. # Yes
E. W/N factual and legal justification exists to issue a temporary restraining order
to restrain the implementation of the DAP, NBC No. 541, and all other
executive issuances allegedly implementing the DAP. # the issue is now moot
however operative fact holds
F. W/N the release of unprogrammed funds under the DAP was in accord with the
GAAs. # No
Held:
A. Petitions under Rule 65 are proper remedies

• Sec 1 Article 8 of the Philippine Constitution states that judicial power includes
the duty of the courts of justice not only “to settle actual controversies involving
rights which are legally demandable and enforceable” but also “to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.” It has expanded the concept of judicial power, which up to then
was confined to settling actual controversies involving rights that were legally
demandable and enforceable.
o The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others.
o The Supreme Court/Judiciary has another important function –it is the
final arbiter on the question whether or not a branch of government or
any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction.
! The Constitution defines the nature, scope and extent of power of
government. The Judiciary mediates to allocate constitutional
boundaries and does not assert superiority in its judicial
supremacy rather it has the power of judicial review whereby it
asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and
guarantees to them- (Angara v. Electoral Commission)
• The present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of jurisdiction.
These are the special civil actions for certiorari and prohibition, and both are
governed by Rule 65.
o Writ of certiorari- was issued out of Chancery or King’s Bench
(background) to commanding agents or officers of inferior courts to return
the records of a case pending before them. This is to give a party a more
sure and speedy justice as the writ would enable the superior court to
determine from inspection of records, whether the inferior court’s
judgement was rendered without authority.
! errors were of such a nature that, if allowed to stand, they would
result in a substantial injury to the petitioner to whom no other
remedy was available.
o Writ of Prohibition- prohibition is a preventative remedy issuing to restrain
future action, and is directed to the court itself. It is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration of
justice in orderly channels. (Holy Spirit Homeowners Association v
Defensor)
• The petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative
and executive officials even if they do not exercise judicial, quasi-judicial or
ministerial functions.
Requisites for the exercise of the power of judicial review were complied with
• The requisites for the exercise of the power of Judicial Review are:
(1) there must be an actual case or justiciable controversy before the Court;
(2) the question before the Court must be ripe for adjudication;
(3) the person challenging the act must be a proper party; and
(4) the issue of constitutionality must be raised at the earliest opportunity
and must be the very litis mota of the case
• The incompatibility of the perspectives of the parties on the constitutionality of the
DAP and its relevant issuances satisfy the requirement for a conflict between
legal rights—it is a justiciable controversy before the court.
• The fact that public funds have been allocated, disbursed or utilized by reason or
on account of such challenged executive acts gave rise, therefore, to an actual
controversy that is ripe for adjudication by the Court.
o Sec. Abad manifested that the DAP as a program had been discontinued
because it had fully served its purpose, Office of Solicitor General urged
that its termination had already mooted the challenges to the DAP’s
constitutionality,
• The Court cannot agree that the termination of the DAP as a program was a
supervening event that effectively mooted these consolidated cases.
• The Court had in the past exercised its power of judicial review despite the cases
being rendered moot and academic by supervening events, like:
(1) when there was a grave violation of the Constitution;
(2) when the case involved a situation of exceptional character and was
of paramount public interest;
(3) when the constitutional issue raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and
(4) when the case was capable of repetition yet evading review.
! Hence, the court should not abstain from exercising its power
of judicial review
Did the petitioners have the legal standing to sue?
• Legal Standing - a right of appearance in a court of justice on a given question.

o the interest of a person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law or
any government act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, is
about to be denied some right or privilege to which he is lawfully entitled.
(Agan v PITC)
• the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its
discretion. In Araneta v Dinglasan, the court liberalized the approach when cases
had “transcendental importance”- far reaching implications even if the
petitioner had no standing.
o it is enough that he sufficiently demonstrates in his petition that he is
entitled to protection or relief from the Court in the vindication of a public
right.
• Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing
in public actions. The distinction was first laid down in Beauchamp v. Silk
o As citizen- an instrument of public concern
o As taxpayer- affected by expenditure of public funds
• The issues center on the extent of the power of the Chief Executive to disburse
and allocate public funds, whether appropriated by Congress or not, these cases
pose issues that are of transcendental importance to the entire Nation, the
petitioners included. As such, the determination of such important issues call for
the Court’s exercise of its broad and wise discretion “to waive the requirement
and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.
Overview of the Budget System

• The term “budget” originated from the Middle English word bouget
that had derived from the Latin word bulga (which means bag or purse).
• The Philippine Budget System has been greatly influenced by western
public financial institutions. This is because of the country’s past as a
colony successively of Spain and the United States for a long period of
time.
• The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916.
• As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the
enactment of laws and executive acts.
o EO No. 25, issued by President Manuel L. Quezon on April 25,
1936, created the Budget Commission to serve as the agency that
carried out the President’s responsibility of preparing the budget.
o CA 246- the first budget law- provided a line-item budget as the
framework of the Government’s budgeting system, with emphasis
on the observance of a “balanced budget” to tie up proposed
expenditures with existing revenues
o Republic Act (RA) No. 992, whereby Congress introduced
performance-budgeting to give importance to functions, projects
and activities in terms of expected results.
o PD 1171 converted the Budget Commission into the Ministry of
Budget, and gave its head the rank of a Cabinet member. The
Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the
DBM pursuant to EO No. 292 effective on November 24, 1989.
The Philippine Budget Cycle
• Four phases comprise the Philippine budget process, specifically:

(1) Budget Preparation;
(2) Budget Legislation;
(3) Budget Execution; and
(4) Accountability
Budget Preparation
- Commenced through the issuance of a Budget Call by the DBM.
o contains budget parameters earlier set by the Development Budget
Coordination Committee (DBCC) as well as policy guidelines and
procedures to aid government agencies in the preparation and
submission of their budget proposals
o Budget Call is of 2 kinds:
1. National Budget Call – addressed to all agencies, including state
universities and colleges
2. Corporate Budget Call – addressed to all Government Owned
and Controlled Corporations (GOCC) and Government Financial
Institutions (GFI)
- Following the issuance of a budget call, various departments and agencies
submit their Agency Budget Proposals to DBM
- The proposals are then presented before a technical panel of DBM in scheduled
budget hearings wherein agencies and departments are given the chance to
defend their budget
- DBM bureaus then review the Agency Budget Proposal and then come up with
recommendations for the Executive Review Board comprised of the DBM
secretary and DBM senior officials.
- The DBM next consolidates the recommended agency budgets into the National
Expenditure Program (NEP) and a Budget of Expenditures and Sources of
Financing (BESF). The NEP provides the details of spending for each
department and agency by program, activity or project (PAP), and is submitted
in the form of a proposed GAA
- The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or re- prioritization. Once the
NEP and the BESF are approved by the President and the Cabinet, the DBM
prepares the budget documents for submission to Congress.
Budget Legislation
- This phase is also known as the Budget Authorization Phase, and involves
the significant participation of the Legislative through its deliberations.
- the President’s Budget is assigned to the House of Representatives’
Appropriations Committee on First Reading.
o The Appropriations Committee and its various Sub-Committees
schedule and conduct budget hearings to examine the PAPs of the
departments and agencies.
- Thereafter, the House of Representatives drafts the General Appropriations
Bill (GAB)
- The GAB is sponsored, presented and defended by the House of
Representatives’ Appropriations Committee and Sub-Committees in plenary
session.
o As with other laws, the GAB is approved on Third Reading before
the House of Representatives’ version is transmitted to the Senate.
o the Senate may conduct its own committee hearings simultaneously

with the House of Representatives’ deliberations.
- The Senate version of the GAB is likewise approved on Third Reading.
- The House of Representatives and the Senate then constitute a panel each
to sit in the Bicameral Conference Committee for the purpose of discussing
and harmonizing the conflicting provisions of their versions of the GAB. The
“Harmonized” GAB is then presented to the President for approval.
- The President reviews the GAB, and prepares the Veto Message where
budget items are subjected to direct veto, or are identified for conditional
implementation.
- If by the end of fiscal year, the Congress shall fail to pass the Gab for the
next year, the GAA from the preceding fiscal year shall be re-enacted and
shall remain in force until the GAB is passed by Congress.
Budget Execution
- The implementation of the budget; the primary function of the DBM

- The implementation of the GAA is directed by the guidelines issued by the DBM.
! Prior to this, the various departments and agencies are required to
submit Budget Execution Documents (BED) to outline their
plans and performance targets by laying down the physical and
financial plan, the monthly cash program, the estimate of
monthly income, and the list of obligations that are not yet
due and demandable.
- Thereafter, the DBM prepares an Allotment Release Program (ARP) and a
Cash Release Program (CRP). The ARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the monthly, quarterly and
annual disbursement levels.
! Allotments, which authorize an agency to enter into obligations,
are issued by the DBM. Allotments are lesser in scope than
appropriations, in that the latter embrace the general legislative
authority to spend.
! Allotments may be released in two forms – through a
comprehensive Agency Budget Matrix (ABM), or, individually, by
SARO
- Armed with either the ABM or the SARO, agencies become authorized to incur
obligations on behalf of Government to implement their PAPs.
- In order to settle the obligations incurred by the agencies, the DBM issues a
disbursement authority so that cash may be allocated in payment of the
obligations.
- Actual disbursement or spending of government funds terminates the Budget
Execution Phase and is usually accomplished through the Modified
Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
Accountability
- ensures that the government funds have been effectively and efficiently utilized
to achieve the State’s socio-economic goals.
- allows the DBM to assess the performance of agencies during the fiscal year for
the purpose of implementing reforms and establishing new policies.
- An agency’s accountability may be examined and evaluated through
(1) performance targets and outcomes;
(2) budget accountability reports;
(3) review of agency performance; and
(4) audit conducted by the Commission on Audit (COA).
DAP was a program designed to promote economic growth
- Pres. Aquino made efficiency and transparency in gov’t spending a focus for his
administration
o Such focus resulted in improved fiscal deficit of 0.5% in GDP and
decelerated gov’t project implementation and payment schedules
- The economic situation prevailing in the middle of 2011 thus paved the way for
the development and implementation of the DAP as a stimulus package intended
to fast-track public spending and to push economic growth by investing on high-
impact budgetary PAPs to be funded from the “savings” generated during the
year as well as from unprogrammed funds.
o The PAPs funded under the DAP were chosen for this reason based on
their: (1) multiplier impact on the economy and infrastructure
development; (2) beneficial effect on the poor; and (3) translation into
disbursements.
o The DAP was the product of “plain executive policy-making” to stimulate

the economy by way of accelerated spending
- The March 2012 report of the World Bank, released after the initial
implementation of the DAP, revealed that the DAP was partially successful. The
disbursements under the DAP contributed 1.3 percentage points to GDP growth
by the fourth quarter of 2011.
- the President, in keeping with his duty to faithfully execute the laws, had
sufficient discretion during the execution of the budget to adapt the budget to
changes in the country’s economic situation. He could adopt a plan like the DAP
for the purpose.
o He could pool the savings and identify the PAPs to be funded under the
DAP. The pooling of savings pursuant to the DAP, and the identification
of the PAPs to be funded under the DAP did not involve appropriation in
the strict sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions, the
Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution.
! There was already a law – the GAA that authorized the President
to pool savings for the purpose of augmenting an item in his
respective office
Any transfer of appropriated funds should conform to Section 25(5), Article VI of

the Constitution
- The power to transfer funds can give the President the flexibility to meet
unforeseen events that may otherwise impede the efficient implementation of the
PAPs set by Congress in the GAA.
- This flexibility comes in the form of policies that the Executive may adopt during
the budget execution phase. The DAP – as a strategy to improve the country’s
economic position – was one policy that the President decided to carry out in
order to fulfill his mandate under the GAAs
- During Marco’s time, the President had no limitations in transferring funds
(“interest of the public, as the President may determine.”) The 1971
Constitutional Convention changed that.
- The 1973 Constitution explicitly and categorically prohibited the transfer of funds
from one item to another, unless Congress enacted a law authorizing the
President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of the Constitutional Commissions to transfer funds for the
purpose of augmenting any item from savings in another item in the GAA of
their respective offices. (Sec 25 (5) of Art 6 of 1987 Constitution
o Leeway was for augmentation only
- DBM cited 2011 and 2012 GAAs as justification for the use of savings under
DAP. Such provisions are unfaithful to the Constitution for not carrying the
phrase “for their respective offices” in sec 25 and instead used “any item in this
act,” such provisions were corrected by Congress in 2013 GAA.
There were no savings from which funds could be sourced for the DAP
- The power to augment was to be used only when the purpose for which the
funds had been allocated were already satisfied, or the need for such funds had
ceased to exist, for only then could savings be properly realized. This
interpretation prevents the Executive from unduly transgressing Congress’ power
of the purse
- Three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level:
a) the PAP for which the appropriation had been authorized was
completed, finally discontinued, or abandoned; or
(b) there were vacant positions and leaves of absence without pay; or
(c) the required or planned targets, programs and services were realized
at a lesser cost because of the implementation of measures resulting in
improved systems and efficiencies.
- The declaration of the DBM by itself does not state the clear legal basis for the
treatment of unreleased or unalloted appropriations as savings. The fact alone
that the appropriations are unreleased or unalloted is a mere description of the
status of the items as unalloted or unreleased. They have not yet ripened into
categories of items from which savings can be generated.
- Congress provided a one-year period of availability of the funds for all allotment
classes in the 2013 GAA yet, in his memorandum for the President dated May
20, 2013, Sec. Abad sought omnibus authority to consolidate savings and
unutilized balances to fund the DAP on a quarterly basis
- DBM forced the generation of savings in order to have a larger fund available
for discretionary spending. By withdrawing unobligated allotments in the middle
of fiscal year, they have deprived funding for PAPs with existing appropriations
under GAAs. The withdrawals were under the initiative of DBM by requiring
departments and agencies to submit to DBM budget accountability reports in the
middle of the year (June 30, 2012) in its issuance of NBC 541
- The withdrawal of unobligated allotments under the DAP should not be regarded
as impoundment because it entailed only the transfer of funds, not the retention
or deduction of appropriations. Impoundment refers to a refusal by the President,
for whatever reason, to spend funds made available by Congress. It is the failure
to spend or obligate budget authority of any type.
o DBM did not stop further expenditures appropriated by Congress but
rather transferred funds to other PAPs
Third Requisite – No funds from savings could be transferred under the DAP to
augment deficient items not provided in the GAA
- “augment” means to enlarge or increase in size, amount, or degree.

- An appropriation for any PAP must first be determined to be deficient before it
could be augmented from savings.
- Upon careful review of the documents contained in the seven evidence
packets, we conclude that the “savings” pooled under the DAP were allocated to
PAPs that were not covered by any appropriations in the pertinent GAAs.
o transfer under the DAP to the DREAM project exceeding by almost 300%
the appropriation by Congress for the program
o the Executive allotted funds for personnel services and capital outlays.
The Executive thereby substituted its will to that of Congress as Congress
did not appropriate funds for these. Worse, the Executive had not earlier
proposed any amount for personnel services and capital outlays in the
NEP that became the basis of the 2011 GAA
- The power to spend the public wealth resided in Congress, not in the Executive.
Congress acts as the guardian of the public treasury in faithful discharge of its
power of the purse whenever it deliberates on proposals submitted by the
Executive.
Cross-border augmentations from savings were prohibited by the Constitution
- funds appropriated for one office are prohibited from crossing over to another
office even in the guise of augmentation of a deficient item or items.
- The phrase “respective offices” used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate
President; the House of Representatives, with respect to the Speaker; the
Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with
respect to their respective Chairpersons.
- The records show that funds amounting to P143,700,000.00 and
P250,000,000.00 were transferred under the DAP respectively to the COA and
the House of Representatives.
- The plain text of Section 25(5), disallowing cross- border transfers was
disobeyed. Cross-border transfers, whether as augmentation, or as aid, were
prohibited under Section 25(5)
Sourcing the DAP from unprogrammed funds despite the original revenue targets
not having been exceeded was invalid
- The documents contained in the Evidence Packets by the OSG have confirmed
that the unprogrammed funds were treated as separate sources of funds. Even
so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when
the unprogrammed funds could be released and the purposes for which they
could be used
o The condition for the release of the unprogrammed funds was that the
revenue collections must exceed revenue targets; and that the release of
the unprogrammed funds was illegal because such condition was not
met.
- Contrary to the DBM’s averment that there were three instances when
unprogrammed funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM – the collection of new revenues
from sources not originally considered in the BESFs – was not included. This
meant that the collection of additional revenues from new sources did not warrant
the release of the unprogrammed funds.
o Hence, even if the revenues not considered in the BESFs were collected
or generated, the basic condition that the revenue collections should
exceed the revenue targets must still be complied with in order to justify
the release of the unprogrammed funds.
o gave the authority to use such additional revenues for appropriations
funded from the unprogrammed funds. They did not at all waive
compliance with the basic requirement that revenue collections must still
exceed the original revenue targets to release unprogrammed funds.
- to release the unprogrammed funds simply because there was an excess
revenue as to one source of revenue would be an unsound fiscal management
measure because it would disregard the budget plan and foster budget deficits, in
contravention of the Government’s surplus budget policy
Equal protection, checks and balances, and public accountability challenges
- The denial of equal protection of any law should be an issue to be raised only by
parties who supposedly suffer it, and, in these cases, such parties would be the
few legislators claimed to have been discriminated against in the releases of
funds under the DAP.
o These legislators did not raise the question of equal protection to the
court. To have the Court decide on this matter despite the inadequacy of
the showing of factual and legal support would be to compel it to
speculate, and the outcome would not do justice
- The various circulars and memoranda of DBM show that these expositions have
transgressed the doctrine of separation of powers
- the principle of public accountability was transgressed because the adoption and
implementation of the DAP constituted an assumption by the Executive of
Congress’ power of appropriation
Doctrine of operative fact was applicable
- The doctrine of operative fact recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded.
In short, it nullifies the void law or executive act but sustains its effects.
o exception to the general rule that a void or unconstitutional law produces
no effect
o Its application to the DAP proceeds from equity and fair play.
- the Executive as the disburser and the offices under it and elsewhere as the
recipients could be required to undo everything that they had implemented in
good faith under the DAP. That scenario would be enormously burdensome for
the Government. Equity alleviates that burden.
- The doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a valid
law would result in inequity and injustice; but where no such result would ensue,
the general rule that an unconstitutional law is totally ineffective should apply.
o doctrine of operative fact can apply only to the PAPs that can no longer
be undone, and whose beneficiaries relied in good faith on the validity of
the DAP, but cannot apply to the authors, proponents and implementors
of the DAP, unless there are concrete findings of good faith in their favor
by the proper tribunals determining their criminal, civil, administrative and
other liabilities.
MODULE 3
ADR: “Alternative” can be “Appropriate”
Mainstreaming Mediation as a Dispute Resolution Mechanism in the Law Student’s

Consciousness
1. Republic Act No. 9285 (Chapter 2-Mediation)

Approved: April 2, 2004
Effectivity: 15 days after publication in at least 2 newspapers of general circulation
MEDIATION
Mediation- a voluntary process in which a mediator, selected by the disputing parties,

facilitates communication and negotiation, and assist the parties in reaching a voluntary
agreement regarding a dispute. (Sec. 3(q))
Mediator- person who conducts mediation. (Sec. 3(r))
Mediation party- person who participates in a mediation and whose consent is necessary
to resolve the dispute. (Sec. 3(s))
Mediation-Arbitration(Med-Arb)- step dispute resolution process involving both mediation

and arbitration. (Sec. 3(t))
GENERAL RULE: CONFIDENTIALITY OF INFORMATION (P-R-I-P-I-T):
P-Information obtained through mediation shall be privileged and confidential.
R-A party, a mediator, or a nonparty participant may refuse to disclose and may prevent
any other person from disclosing a mediation communication.
I-Confidential Information shall not be subject to discovery and shall be inadmissible if

any adversarial proceeding, whether judicial or quasi-judicial.
Exception: evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected from
discovery solely by reason of its use in a mediation
P-Persons involved or previously involved in a mediation who may not be compelled to

disclose confidential information during mediation:
1) Parties to the dispute
2) Mediator or Mediators
3) Counsel for the parties
4) Nonparty participants
5) Any Persons hired or engaged in connection with the mediation as secretary,
stenographer, clerk or assistant
6) Any other person who obtains or possesses confidential information by
reason of his/her profession
I- Protections of this Act shall continue to apply even of a mediator is found to have
failed to act impartially
T- Mediator may not be called to testify to provide information gathered in mediation. A
mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his
attorney's fees and related expenses.
EXCEPTIONS:
I. C-Communication is (A-P-T-I-A-M-P):
1) in an agreement evidenced by a record authenticated by all parties to the
agreement
2) available to the public or that is made during a session of a mediation which is
open, or is required by law to be open, to the public
3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence
4) internationally used to plan a crime, attempt to commit, or commit a crime, or
conceal an ongoing crime or criminal activity
5) sought or offered to prove or disprove abuse, neglect, abandonment, or
exploitation in a proceeding in which a public agency is protecting the interest of
an individual protected by law
Exception to the exception: where a child protection matter is referred to

mediation by a court or a public agency participates in the child protection
mediation
6) sought or offered to prove or disprove a claim or complaint of professional

misconduct or malpractice filed against mediator in a proceeding
7) sought or offered to prove or disprove a claim of complaint of professional
misconduct of malpractice filed against a party, nonparty participant, or
representative of a party based on conduct occurring during a mediation
II. Court finds that (H-E-O-S/C-L)

a. After a hearing in camera
b. Shown that evidence is not otherwise available
c. Need for evidence substantially outweighs confidentiality
d. Communication is sought or offered in:
a. A court proceeding involving a crime or felony; or
b. A proceeding to prove a claim or defense that under the law is sufficient
to reform or avoid liability on a contract arising our of the mediation.
III. A mediator may not be compelled to provide evidence of a mediation

communication or testify in such proceeding.
IV. If a mediation communication is not privileged under an exception in subsection (a)

or (b), only the portion of the communication necessary for the application of the
exception for nondisclosure may be admitted. The admission of particular evidence for
the limited purpose of an exception does not render that evidence, or any other
mediation communication, admissible for any other purpose.
• GENERAL RULE: A mediator may not make a report, assessment, evaluation,

recommendation, finding, or other communication regarding a mediation to a
court or agency or other authority that make a ruling on a dispute that is the
subject of a mediation.
• EXCEPTIONS (Mot-S-13)
(a) Where the mediation occurred or has terminated, or where a settlement was
reached.
(b) As permitted to be disclosed under Section 13 of this Chapter.
• Meditation operative principles BEFORE the mediation:

(a) Before accepting a mediation, an individual who is requested to serve as a
mediator shall:
(1) make an inquiry that is reasonable under the circumstances to

determinate whether there are any known facts that a reasonable individual
would consider likely to affect the impartiality of the mediator, including:
o A financial or personal interest in the outcome of the mediation and
o Any existing or past relationship with a party or foreseeable participant in
the mediation; and
(2) Disclosure to the mediation parties any such fact known or learned as
soon as is practical before accepting a mediation.
(b) If a mediation learns any fact described in paragraph (a) (1) of this section
after accepting a mediation, the mediator shall disclose it as soon as
practicable.
At the request of a mediation party, an individual who is requested to serve as

mediator shall disclose his/her qualifications to mediate a dispute.
This Act does not require that a mediator shall have special qualifications by
background or profession unless the special qualifications of a mediator are
required in the mediation agreement or by the mediation parties.
• Participation in Mediation. - Except as otherwise provided in this Act, a party may

designate a lawyer or any other person to provide assistance in the
mediation. A lawyer of this right shall be made in writing by the party waiving it.
A waiver of participation or legal representation may be rescinded at any time.
• Place of Mediation. - The parties are free to agree on the place of mediation.
Failing such agreement, the place of mediation shall be any place convenient
and
appropriate to all parties.
• Effect of Agreement to Submit Dispute to Mediation Under Institutional

Rules - An agreement to submit a dispute to mediation by any institution shall
include:
o an agreement to be bound by the internal mediation and administrative
policies of such institution.
o agreement to have such rules govern the mediation of the dispute and for the
mediator, the parties, their respective counsel, and non party participants to
abide by such rules.
In case of conflict between the institutional mediation rules and the provisions of
this Act, the latter shall prevail.
• Enforcement - The mediation operative principles AFTER A SETTLEMENT :
• A settlement agreement following successful mediation shall be prepared by:
o the parties with the assistance of their respective counsel, if any, and
o by the mediator.
• The parties and their respective counsels shall endeavor to make the terms and
condition thereof complete and make adequate provisions for the contingency of
breach to avoid conflicting interpretations of the agreement.
• The parties and their respective counsels, if any, shall sign the settlement
agreement. The mediator shall certify that he/she explained the contents of the
settlement agreement to the parties in a language known to them.
• If the parties so desire, they may deposit such settlement agreement with the
appropriate Clerk of a Regional Trial Court of the place where one of the parties
resides. Where there is a need to enforce the settlement agreement, a petition may
be filed by any of the parties with the same court, in which case, the court shall
proceed summarily to hear the petition, in accordance with such rules of procedure
as may be promulgated by the Supreme Court.
• The parties may agree in the settlement agreement that the mediator shall become a
sole arbitrator for the dispute and shall treat the settlement agreement as an arbitral
award which shall be subject to enforcement under Republic Act No. 876, otherwise
known as the Arbitration Law, notwithstanding the provisions of Executive Order No.
1008 for mediated dispute outside of the CIAC.
2. Implementing Rules and Regulations of RA 9285 (DOJ Circular No. 98,

Chapter 3-Mediation)
Applies only to:

o voluntary mediation, whether ad hoc or institutional, other than court-
annexed mediation and only in default of an agreement of the parties on
the applicable rules.
o all cases pending before an administrative or quasi-judicial agency that
are subsequently agreed upon by the parties to be referred to mediation.
Statement of Policy: In applying and construing the provisions of these Rules,

consideration must be given to the need to promote candor of parties and mediators
through:
o confidentiality of the mediation process,
o the policy of fostering prompt, economical and amicable resolution of
disputes in accordance with principles of integrity of determination by the
parties and
o the policy that the decision-making authority in the mediation process
rests with the parties.
• A party may petition a court before which an action is prematurely brought in a

matter which is the subject of a mediation agreement, if:
o at least one party so requests, not later than the pre-trial conference or
o upon the request of both parties thereafter, to refer the parties to
mediation in accordance with the agreement of the parties.
Selection of a Mediator
Freedom to Select Mediator

• The parties have the freedom to select their mediator.
• The parties may request the OADR to provide them with a list or roster or the
resumes of its certified mediators.
• The OADR may be requested to inform the mediator of his/her selection.
Replacement of Mediator:
• If the mediator selected is unable to act as such for any reason, the parties
may, upon being informed of such fact, select another mediator.
Refusal or Withdrawal of Mediator:

• A mediator may refuse from acting as such, withdraw or may be compelled to
withdraw, from the mediation proceedings under the following circumstances:
o If any of the parties so requests the mediator to withdraw;
o The mediator does not have the qualifications, training and
experience to enable him/her to meet the reasonable expectations of
the parties;
o Where the mediator's impartiality is in question;
o If continuation of the process would violate any ethical standards;
o If the safety of any of the parties would be jeopardized;
o If the mediator is unable to provide effective services;
o In case of conflict of interest; and
• In any of the following instances, if the mediator is satisfied that:
o one or more of the parties is/are not acting in good faith;
o the parties' agreement would be illegal or involve the commission of a
crime;
o continuing the dispute resolution would give rise to an appearance of
impropriety;
o continuing with the process would cause significant harm to a
nonparticipating person or to the public; or
o continuing discussions would not be in the best interest of the parties,
their minor children or the dispute resolution process.
Ethical Conduct of a Mediator
Competence – General Rule: It is not required that a mediator shall have special
qualifications by background or profession unless the special qualifications of a mediator
are required in the mediation agreement or by the mediation parties.
Exception: the certified mediator shall:

(a) maintain and continually upgrade his/her professional competence in mediation skills;
(b) ensure that his/her qualifications, training and experience are known to and accepted
by the parties; and
(c) serve only when his/her qualifications, training and experience enable him/her to
meet the reasonable expectations of the parties and shall not hold himself/herself out or
give the impression that he/she has qualifications, training and experience that he/she
does not have.
Upon the request of a mediation party, an individual who is requested to serve as
mediator shall disclose his/her qualifications to mediate a dispute.
Consent and Self-Determination.

(a) A mediator shall make reasonable efforts to ensure that each party understands
the nature and character of the mediation proceedings 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.
(b) If a mediator believes that a party, who is not represented by counsel, is unable
to understand, or fully participate in, the mediation proceedings for any reason, a
mediator may either:
(c) (i) limit the scope of the mediation proceedings in a manner consistent with the
party's ability to participate, and/or recommend that the party obtain appropriate
assistance in order to continue with the process; or (ii) terminate the mediation
proceedings. (b) A mediator shall 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.
Separation of Mediation from Counseling and Legal Advice.

GENERAL RULE: A mediator shall:
(i) refrain from giving legal or technical advice and otherwise engaging in
counseling or advocacy; and
(ii) abstain from expressing his/her personal opinion on the rights and duties of
the parties and the merits of any proposal made.
EXCEPTIONS:
• In evaluative mediation or when the parties so request,
• Where appropriate and where either or both parties are not represented by
counsel, a mediator shall:
o (i) recommend that the parties seek outside professional advice to help
them make informed decision and to understand the implications of any
proposal; and
o (ii) suggest that the parties seek independent legal and/or technical
advice before a settlement agreement is signed.
! Without the consent of all parties, and for a reasonable time under
the particular circumstance, a mediator who also practices another
profession shall not establish a professional relationship in that
other profession with one of the parties, or any person or entity, in
a substantially and factually related matter.
Promotion of Respect and Control of Abuse of Process:

The mediator shall encourage:
• mutual respect between the parties, and
• shall take reasonable steps, subject to the principle of self-determination, to limit
abuses of the mediation process.
Solicitation or Acceptance of any Gift:
GENERAL RULE: No mediator or any member of a mediator's immediate family or

his/her agent shall:
• request,
• solicit,
• receive or accept:
o any gift or any type of compensation other than the agreed fee and
expenses in connection with any matter coming before the mediator.
Role of Parties and their Counsels
Designation of Counselor any Person to Assist Mediation.
GENERAL RULE: A party may designate a lawyer or any other person to provide
assistance in the mediation.
• A waiver of this right shall be made in writing by the party waiving it.
• A waiver of participation or legal representation may be rescinded at any time.
Role of Counsel as a Collaborator
(a) The lawyer shall view his/her role in mediation as a collaborator with the other
lawyer in working together toward the common goal of helping their clients resolve
their differences to their mutual advantage.
(b) The lawyer shall encourage and assist his/her client to actively participate in
positive discussions and cooperate in crafting an agreement to resolve their dispute.
(c) The lawyer must assist his/her client to comprehend and appreciate the mediation
process and its benefits, as well as the client's greater personal responsibility for the
success of mediation in resolving the dispute.
(d) In preparing for participation in mediation, the lawyer shall confer and discuss
with his/her client the following:
(i) The mediation process as essentially a negotiation between the parties
assisted by their respective lawyers, and facilitated by a mediator, stressing:
• its difference from litigation,
• its advantages and benefits,
• the client's heightened role in mediation and responsibility for its success
and
• explaining the role of the lawyer in mediation proceedings.
• The substance of the upcoming mediation, such as:
(aa) The substantive issues involved in the dispute and their prioritization
in terms of importance to his/her client's real interests and needs;
(bb) The study of the other party's position in relation to the issues with a
view to understanding the underlying interests, fears, concerns and
needs;
(cc) The information or facts to be gathered or sought from the other side
or to be exchanged that are necessary for informed decision-making;
(dd) The possible options for settlement but stressing the need to be
open-minded about other possibilities; and
(ee) The best, worst and most likely alternatives to a non-negotiated
settlement.
Other Matters which the Counsel shall do to Assist Mediation.
The lawyer:
(a) shall give support to the mediator so that his/her client will fully understand the rules
and processes of mediation;
(b) shall impress upon his/her client the importance of speaking for himself/herself and
taking responsibility for making decisions during the negotiations within the mediation
process;
(c) may ask for a recess in order to give advice or suggestions to his/her client in private,
if he/she perceives that his/her client is unable to bargain effectively;
(d) shall assist his/her client and the mediator put in writing the terms of the settlement
agreement that the parties have entered into. The lawyers shall see to it that the terms of
the settlement agreement are not contrary to law, morals, good customs, public order or
public policy.
Conduct of Mediation
The mediator shall not:

• make untruthful or exaggerated claims about:
o the dispute resolution process,
o its costs and benefits,
o its outcome or
o the mediator's qualifications and abilities during the entire mediation
process.
IMPORTANT: The mediator shall help the parties reach a satisfactory resolution of
their dispute BUT has no authority to impose a settlement on the parties.
The parties shall:

• personally appear for mediation and may be assisted by a lawyer.
A party may be represented by an agent who must have full authority to negotiate and
settle the dispute.
STAGES OF MEDIATION PROCESS (O-I-E-S-G-C)

The mediation process shall, in general, consist of the following stages:
(i) opening statement of the mediator;

(ii) individual narration by the parties;
(iii) exchange by the parties;
(iv) summary of issues;
(v) generation and evaluation of options; and
(vi) closure.
GENERAL RULE: The mediation proceeding shall be held in private.
EXCEPTION: Persons, other than the parties, their representatives and the mediator,
may attend only with the consent of all the parties.
The mediation shall be closed: (E-W-D)

(i) by the execution of a settlement agreement by the parties;
(ii) by the withdrawal of any party from mediation; and
(iii) by the written declaration of the mediator that any further effort at mediation
would not be helpful.
Confidentiality of Information
GENERAL RULE: Information obtained through mediation shall be privileged and

confidential.
• A party, mediator, or non-party participant may refuse to disclose and may
prevent any other person from disclosing a confidential information.
• Confidential information shall not be subject to discovery and shall be
inadmissible in any adversarial proceeding, whether judicial or quasi judicial.
• However, evidence or information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from discovery solely by
reason of its use in a mediation.
In such an adversarial proceeding, the following persons involved or previously involved

in a mediation may not be compelled to disclose confidential information obtained during
the mediation:
(i) the parties to the dispute;
(ii) the mediator or mediators;
(iii) the counsel for the parties;
(iv) the non-party participants;
(v) any person hired or engaged in connection with the mediation as secretary,
stenographer, clerk or assistant; and
(vi) any other person who obtains or possesses confidential information by reason of
his/her profession.
• The protections of the ADR Act shall continue to apply even if a mediator is
found to have failed to act impartially.
• A mediator may not be called to testify to provide confidential information
gathered in mediation. A mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his/her attorney's fees and related expenses.
WAIVER OF PRIVILEGE:
• A privilege arising from the confidentiality of information may be waived in a

record or orally during a proceeding by the mediator and the mediation
parties.
• With the consent of the mediation parties, a privilege arising from the
confidentiality of information may likewise be waived by a non-party participant
if the information is provided by such non-party participant.
HOWEVER, a person who discloses confidential information shall be precluded from

asserting the privilege under Article 3.21 (Confidentiality of Information) to bar disclosure
of the rest of the information necessary to a complete understanding of the previously
disclosed information.
IF a person suffers loss or damage as a result of the disclosure of the confidential

information, he/she shall be entitled to damages in a judicial proceeding against the
person who made the disclosure.
A person who discloses or makes a representation about a mediation is precluded from

asserting the privilege mentioned in Article 3.21 to the extent that the communication
prejudices another person in the proceeding and it is necessary for the person
prejudiced to respond to the representation or disclosure.
3. Julie McFarlane, Evolution of the New Lawyer: How Lawyers are

Resharping the Practice of Law, 2008. J. Dispute Resolution (2008)
Introduction:
• While the legal profession is rooted in traditional models of lawyering, it is
responsive to a new climate of disputing.
• In an era of "vanishing trials"' and civil justice reforms which favor the
development of mandatory and voluntary settlement processes, effective
negotiation and settlement skills are becoming increasingly central to the practice
of law and occupy more of lawyers' real time and attention than adversarial trial
lawyering.
• Book by author - "The New Lawyer: How Settlement is Transforming the Practice
of Law" argues that the changes in the legal practice and public culture drive the
emergence of the “new lawyer”
Times of Change
• “Vanishing trial” is one of the vital seismic changes in the legal profession.
o 98% civil settlement rate and the increasing use of negotiation, mediation
and collaboration in resolving lawsuits have dramatically altered the role
of the lawyer.
o The traditional conception of the lawyer as "rights warrior" no longer
satisfies client expectations, which center on value for money and
practical problem solving rather than on expensive legal argument and
arcane procedures.
• The business model of the profession has also altered dramatically.

o Large firms and corporate customers now dominate the legal practice.
o Business clients are increasingly practicing self-help to avoid protracted
litigation by employing in-house counsels.
! The number of in-house counsel has risen from 3.2% of the

profession to almost 10% in the last fifty years.
o For personal clients also, the lawyer-client relationship is fundamentally
altered by the trend away from professional deference.
! Clients of all types want value for money in legal services. Clients
are increasingly demanding a role in determining how much time,
money, and emotional energy they invest, and in what type of
resolution.
o Both corporate and personal customers appear increasingly unwilling to
passively foot the bill for a traditional, litigation-centered approach to legal
services, preferring a more pragmatic, cost-conscious, and time-efficient
approach to resolving legal problems.
• Another highly significant change is justice reform.

o Usually initiated by governments that have become impatient with the
pace and cost of protracted litigation clogging the courts.
o The most important of these reforms have introduced mandatory
settlement processes into the civil courts, in the form of mediation and
judicial settlement conferences.
o The same rationale - encouraging earlier settlement in as many cases as
possible - has prompted the introduction of judge-directed case
management in order to move cases along more efficiently.
• The introduction of diversion programming and restorative justice alternatives to

incarceration, effectively institutionalizing plea bargaining, and offering a range of
new processes and sanctions in criminal law.
• Family law is an area in which voluntary participation in alternatives to litigation

has grown exponentially, primarily in the form of family mediation or Collaborative
family lawyering.
o Family courts often avoid pressing mandatory settlement procedures on
parties to avoid coercion and power abuse between spouses.
Nonetheless, family courts across North America have been developing
diverse, multi-service programs, offering parties mediation and
counseling.
• Many corporations and institutions have determined for themselves that they
wish to adopt new voluntary policies and codes of practice that emphasize a
problem- solving approach to conflict resolution and aim to reduce their litigation
budget.
• Changes in procedure, voluntary initiatives, and changing client expectations are
coming together to create a new role for counsel and a new model of client
service. This role is moving away from the provision of narrow technical advice
and strategies that center on litigation and fighting (i.e. the "warrior lawyer")
towards a more holistic, practical, and efficient approach to conflict resolution.
The result is a new model of lawyering practice that builds on the skills and
knowledge of traditional legal practice but is different in critical ways.
• The new lawyer is not completely unrelated or dissimilar to the warrior lawyer but
an evolved, contemporary version.
• Both the emerging and the traditional models of lawyering place legal intelligence
at their center as the primary and unique skill of the lawyer. Both approaches
require excellent client communication skills, good writing skills, and, sometimes,
persuasive oral advocacy skills. Both approaches require effective negotiation.
However, the new lawyer realizes that she needs to utilize these skills in different
ways and in new and different processes, designed to facilitate earlier settlement.
Three Key Beliefs
These three key beliefs are first formed at law school and then challenged and refined in
practice. They translate into what behaviors and practices are seen as professional,
appropriate, and effective.
1. A default to rights-based strategies and processes (and an assumption that these

are always the most appropriate and effective);
2. An image of justice as process rather than outcomes-while outcomes may be
capricious and hard to predict, it is the stable knowable procedural steps of the
justice system that afford "justice"; and,
3. That the lawyer is "in charge" in the lawyer-client relationship, by virtue of her
superior legal knowledge which is the bedrock of the rights-based strategies she
will pursue.
Conflict Resolution Advocacy

• A new conception of advocacy is evolving out of the changing conditions of legal
disputing. MacFarlane calls this "advocacy as conflict resolution" or conflict
resolution advocacy, which is at the core of the professional identity of the new
lawyer.
• Conflict resolution advocacy means working with clients to anticipate, raise,
strategize, and negotiate over conflict and, if possible, to implement jointly
agreed outcomes. If jointly agreed outcomes are not possible, or if they fall short
of client goals, there are other, familiar, rights-based strategies available that can
be pursued either simultaneously or alternatively.
Conflict Resolution Advocacy and Client Loyalty

• Advocacy as conflict resolution places the constructive and creative promotion of
partisan outcomes at the center of the advocate's role and sees this goal as
entirely compatible with working with the other side.
• The new lawyer remains just as dedicated to achieving her clients' goals as the
warrior or adversarial advocate. What changes is that her primary skill becomes
her effectiveness and ability to achieve the best possible negotiated settlement,
while she remains prepared to litigate if necessary.
• Counsel's loyalty and focus should be on achieving the client's best possible
outcome(s).
• A contradiction between client loyalty and creative consensus building only exists
if counsel is convinced that the only effective way to advance the client's wishes
is by using rights-based processes. Aside from these fairly exceptional cases, the
goal of the conflict resolution advocate is to persuade the other side to settle--on
her client's best possible terms.
• Macfarlane distinguished adversarial advocacy from conflict resolution advocacy
in relation to client loyalty:
o Adversarial advocacy offers no frameworks to counsel to resolve classic
dilemmas such as when and how to settle, or how to balance their own
judgment with the clients' aspirations. Admitting a need to compromise in
any way undermines the core of zealous advocacy. Conflict resolution
advocacy both anticipates these dilemmas and makes them resolvable on
a principled basis. Whereas adversarial advocacy tends to view
settlement as capitulation, conflict resolution advocacy is committed to
evaluating the pros, cons, and alternatives of any settlement option,
which includes an evaluation of the legal, cognitive, and emotional
dimensions because all of these are part of how clients appraise
settlement.
Fact Gathering and Information in Conflict Resolution Advocacy

• According to Macfarlane, the dominant epistemology of litigation is that
knowledge and information have the sole purpose of advancing the client's legal
case. It means that only information that fits the legal argument is either sought
or utilized, and ignores other information that may be important to realizing the
client's goals.
• The adversarial advocate approaches fact-gathering and information as a
competitive process, with information withheld from the other side even where it
may be of little or no consequence, and often where it would be beneficial in
clarifying the relative goals and expectations of each. It is, however, different
from that of the conflict resolution advocacy.
• In conflict resolution advocacy,
o the type of information that may be important is expanded. The
involvement of clients in negotiation and mediation and in planning for
these processes allows for the discussion of information that may not
have a direct bearing on the legal theory of the case but which may have
an important impact on the resolution of the conflict.
o conflict resolution advocacy regards information as a shared resource
that may advance all party interests. Counsel are accustomed to
analyzing what information they need from the other side and what
information they are willing to provide to opposing counsel upon request.
Effective conflict resolution advocates must in addition consider what
information about her client-both his needs and his rights-the other side
must be aware of if they are likely to settle, preferably on her client's best
possible terms.
Re-envisioning Outcomes in Conflict Resolution Advocacy

• In envisioning and evaluating potential outcomes, conflict resolution advocacy
will certainly include proximity to an "ideal" (i.e., successful) legal outcome, but
many other factors will also be important.
• Conflict resolution advocates should consider how far any one outcome would
meet client interests. In a conflict resolution model of advocacy, it is not only the
final deal that matters but also how the client feels about how it was reached,
which includes a sense that the outcome is fair and wise in light of the client's
interests and a recognition of the limits of the system to offer alternative, better
solutions.
• Conflict resolution advocacy is about focusing more of counsel's energy on the
creation of good settlements rather than good positions and developing new
knowledge and skills to support this new and enhanced focus of their work.
• Conflict resolution advocacy builds on some traditional skills and knowledge,
notably information assimilation, legal research, effective oral communication,
strategic planning, and insider knowledge, which are core elements of effective
trial advocacy. Conflict resolution advocacy takes these familiar tools and applies
them to a newly articulated and more realistic goal: the pursuit of acceptable,
reasonable, and durable settlements that meet client interests.
Placing Negotiations at the Center of Legal Practice

• While ready and able to move to an adjudicated determination in any given case,
conflict resolution advocates plan their approach based on one simple and
undisputed fact-most cases settle.
• The relationship between time spent on procedural steps such as drafting and
filing pleadings, preparing and bringing motions, and developing negotiation
strategy and actual negotiation is reversed in a model of conflict resolution
advocacy. Since, conventionally, lawyers spend little time on negotiation
compared to taking procedural steps, this reversal represents a significant shift of
time and energy.
• In conflict resolution advocacy, the development and implementation of effective
negotiation strategies is moved to the center of what advocates offer their clients.
• Conflict resolution advocacy demands that negotiation planning be addressed
even in the earliest stages of file development as a part of the process of
canvassing goals, priorities, and alternatives with the client. An early and explicit
focus on the potential for negotiated settlement requires the holistic framing of
the problem rather than the selective use of information in a way that narrows the
case to its generic legal issues.
• Preferred strategies are those, which persuade the other side first to listen to you
and then to (hopefully) accede or agree with you. Effective negotiators ask
questions that reveal information, rather than holding forth themselves. They
have a sense not only of when to be accommodating but also of when to be
tough in order to protect their clients' interests, working incrementally to create
trust and enhanced solutions.
• They understand and develop norms of reciprocity with the other side, beginning
with establishing comfort and rapport.
o This process requires good interpersonal and communication skills,
including the ability to put the other side at ease, demonstrate respect
and perhaps even empathy, and, most challengingly, create a shared
sense of trust.
o The development of trust is key to exploring enhanced mutual solutions,
and it requires effective explanation, persuasion, and personal
authenticity.
• Conflict resolution advocacy also requires a certain amount of new knowledge,
which can enhance the breadth and depth of the negotiator's skills. Some
examples given by Macfarlane are:
o Understanding the dynamics in negotiation of both value claiming-where
one establishes and holds to a "bottom line" or core components of an
acceptable solution-and value creating-where one explores the additional
benefits that the parties might jointly develop and distribute-creates
balance and provides alternatives when one strategy gets "stuck.
o Experienced negotiators are also sensitive to the importance of identifying
and allowing for cultural differences in both the framing and the resolution
of conflict, recognizing that disputants often need to relate the process
and the outcome to their cultural (familial, community, organizational,
ethnic) expectations and preferences.
• Lawyers who are experienced in settlement advocacy settings identify a num-
ber of discrete negotiation skills-implicating both cognitive and emotional abili-
ties and qualities-which enable them to be most effective.
o Preparing an effective opening statement in negotiation or mediation,
which adopts a firm yet not overly positional tone;
o Matching the appropriate informal process to the case; displaying
confidence and openness;
o Thinking outside the "box" of conventional, legal solutions in developing
creative problem-solving skills; and
o Importance of being able to conceptualize and understand the dispute
from the perspective of the other side.
• The client's best interests can only be achieved if the interests of the other side
are taken into account - central premise of the principled bargaining approach
popularized by Roger Fisher and Bill Ury and is widely identified in research on
lawyer's negotiating techniques.
• The practical importance of this approach becomes clearer when lawyers are
focused on negotiation rather than trial.
Revisiting the Three Key Beliefs

• According to Macfarlane, the model of legal negotiations inevitably challenges
the three key beliefs in many of the same ways and for the same reasons as
conflict resolution advocacy.
o Both approaches question the assumption that all conflicts necessarily
implicate rights.
o While a principled argument can be-and usually is- constructed for each
side's "moral" position, this may miss both the core of what the conflict is
and potential solutions or accommodations.
o Both conflict resolution advocacy and a model of earlier, "interests-aware"
legal negotiations approach rights disputes differently than the traditional
model
o Both models question whether the only and inevitable place to resolve
rights conflicts is in adjudication.
o Both understand rights and entitlements to be a part of a bargaining
framework.
o Interests bargaining and negotiation over rights entitlements can and
must co-exist
• The practical success of early "interests-aware" legal negotiations, mediation,
and other settlement processes belies the assumption that justice can only be
achieved from dutifully jumping through the (increasingly expensive) hoops of
legal process.
o Clients do not necessarily share their lawyers' belief in the formal legal
system as a fair process. What is more, the bottom line for many clients is
practical solutions rather than an elusive and abstract sense of "justice."
The Lawyer/Client Relationship: A New Working Partnership

• The third of the three key beliefs - "lawyer-in-charge"- is challenged by the
widespread decline in professional deference and further problematized by
changes in disputing procedures. The traditional assumptions of control and
hierarchy are challenged when counsel and client are obliged to participate
together in settlement-oriented processes.
• Macfarlane focused on two related aspects of the lawyer-client relationship,
which highlight the impact of these changes, and illustrate some of the
philosophical and practical "terms" of a new relationship: (1) the negotiation of
decision making and control between lawyer and client; and (2) the impact of
client participation in the settlement process.
Decision Making and Control

• A partnership gives the client far greater power not only to review and critique
decisions but also to participate in making them. This shift of power also
requires clients to take far greater responsibility for choices and outcomes. An
explicit transfer of responsibility is especially marked where clients directly
participate in process and decision making as they do, for example, in
Collaborative lawyering.
• In Collaborative Law, clients are expected to take an active part in planning,
analysis, and the formulation of strategy. Collaborative lawyers expect to have
frank conversations with their clients about choices of approach, tactics, and
options.
• In anticipation of early mediation, there are many questions that the lawyer now
needs to ask at the planning stage-questions that only the client can answer and
that are not necessarily related to making the legal case. If decision making is to
be undertaken jointly, there should be no sur- prises for the lawyer in a future
meeting.
• The different type and volume of information shared between lawyer and client in
this model is not only the result of the lawyer needing more information and
asking more questions. Expanding the number of issues that will be considered
is a natural consequence of engaging the client more completely in the de-
velopment of the case and in the dispute resolution strategy (ex. Inclusion of
emotional and psychological issues from the negotiation).
• Whereas discoveries and subsequent lawyer-to-lawyer negotiation allow counsel
to verify what she has been told by her client and gather appropriate supporting
evidence for a claim, early negotiation or mediation implies a greater degree of
reliance on the client's information and a relatively lesser degree of reliance on
legal arguments in the preparation of the case.
• Studies show that lawyers who are positive about mediation seem to have clients
who feel positive about mediation and, similarly, lawyers who are negative and
dismissive about mediation tend to engender the same attitude in their clients.
Equally, offering the client a single option or course of action and asking them to
decide is not authentic shared decision-making, whether this is rights-based
adjudication or an alternative.
• In a working partnership, the choices made by the client may not always jibe
perfectly with the lawyer's own preferences, but, without real choices, it cannot
be a real partnership. Once the client is offered choices and has been fully
briefed on both their implications and the counsel's own preferences, the lawyer
needs to be able to step back and let the client decide.
• The interaction of information and choice goes to the heart of the changes that
are taking place in the lawyer-client relationship. This can be a difficult transition
for both lawyers and clients habituated to the "old" approach.
Client Participation
• In informal settlement procedures, lawyers have far less control over the
proceedings and need to be able to understand how their client will behave and
how to relate to him throughout the process. The new lawyer needs to not only
be able to minimize any negative consequences of the client being present but
also to maximize the benefits.
• Whatever the extent of the clients' role in practice, the cooptation of the client as
a player in negotiations constrains the lawyer's autonomy to play the conflict out
relying solely on his own strategies. Similarly, Collaborative and Cooperative
lawyering protocols promote negotiation in four-way gatherings that include the
clients.
• Lawyers' attitudes towards preparing for, and encouraging, client participation in
dispute processes are in many ways a litmus test for how far they are willing to
share control and decision making more broadly in a partnership--or whether the
old hierarchy will reassert itself. Unless both lawyer and client embrace a new
partnership model, new processes that are inclusive of clients will actually look
and function in a very similar manner to traditional ones.
• A working partnership between lawyer and client aims to produce superior
solutions-that is, superior to those solutions negotiated privately by lawyers or
imposed by a judge. Involving clients in negotiation and mediation processes can
significantly advance this goal.
The Future for the New Lawyer

• Resistance to change is natural and is likely to be especially prevalent where the
stakes are high and law is an elite profession. However, the landscape of legal
disputing has changed dramatically, and this is our present reality.
• Macfarlane believes that the most successful lawyers of the next century will be
practical problem solvers, creative and strategic thinkers, excellent
communicators, persuasive and skillful negotiators, who are able and willing to
work in a new type of professional partnership with their clients.
• There is a need for diversity of lawyers and lawyer styles to meet different client
needs. There is also the realization that no one process of dispute resolution can
be appropriate for all conflicts and that many different options should be
contemplated and assessed by lawyer and client together. There will also, of
course, continue to be many different arenas of professional practice for lawyers,
but each practice setting will need a plan for the future that embraces change
and anticipates more to come.
• A coherent professional identity for lawyers requires an integration of these
changes into their values, behaviors, and goals for their future careers. Satisfied
and fulfilled professionals are those who possess a clear sense of professional
identity and purpose. This is a worthy goal for both new and older members of
the profession in these times of change. The emerging model of the new lawyer
offers present and future members of the profession the philosophical and
practical framework for a renewed sense of focus, commitment, and satisfaction.
GOOD LUCK!

ITLale 2015

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The Women of Aleitheia 1

Truth. Honor. Excellence.

TIPS FOR INTRO TO LAW

TIPS FOR EASIER REVIEWING

Basic Tips for Law School

How to Survive your Freshman Year

FRESHMENT SCHOLASTIC RESPONSIBILITY

WHAT IS THE RETAINING QPI?

WHEN ARE YOU A DEAN'S LISTER?

WHEN ARE YOU "SAFE"?

WHEN ARE YOU PLACED ON PROBATION?

WHAT DOES IT MEAN TO BE PLACED ON PROBATION?

WHEN WILL YOU BE DENIED RE-ENROLLMENT?

On the procedural aspects

Plaintiff – the one who files the suit / the complainant

Introduction to the Introduction

Lifted from FRANZ KAFKA, BEFORE THE LAW CH. 9 (1989).

“And now, I am going to shut the door.”

-Link to Rule of Recognition (see Hart’s Secondary Rules)

“The law was meant only for you.”

The problem of our Laws

1. What is the Law?

3. Kinds of Human (Public) Law:

c. International Law: rules that regulate the community of nations; Traditionally,

4. Moral Law- a “species” of Natural Law; Law and Morality

5. Natural Law v. Positive Law

I. Natural Law Theory

6. Law as the Union of Primary and Secondary Rules (See Hart)

7. International Law (See Hart)

1. Rice, Charles, 50 Questions on the Natural Law

4 Kinds of Law According to Aquinas (see above)

Lifted from: PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE (From Ancient

2. Queen v. Dudley & Stephens, 14 QBD 273 (1884).

A. Collins, Q.C., for the prisoners.

Issue: Whether Dudley or Stephens are guilty of Murder

Held: Guilty. Sentenced to death with recommendation for clemency.

I. Natural Law Theory

What is the nature of the connection?

Traditional Natural law (Aquinas)

Aquinas Theory of Law

o Aquinas has a vision of the universe governed by a single, self-consistent, and

II. Inner Morality of the Law (Lon Fuller)

“Fidelity” version (Lon Fuller)

III. Dworkin’s Interpretive Theory

Two aspects of Fit

Fitting the Fourth Amendment: Privacy

Olmstead and Beyond

The Role of Morality

The Challenge of Skepticism

Two Distinct types of Skepticism

5. Natural Law vs. Positive Law

(Legal Positivism) Austin’s Theory of Law

! Austin does not claim the complete disconnect between positive

6. Law as the Union of Primary and Secondary Rules

(Legal Positivism) Hart’s Primary and Secondary Rules

LEGAL OBLIGATION (GOVERNMENT AND GUNMAN)

PRIMARY AND SECONDARY RULES

The Remedies (Secondary Rules)

Summary: Natural Law Versus Positivism

HART’S FOUR DOUBTS RE: STATUS OF INTERNATIONAL LAW:

a. Is international law, law, even though there is an absence of sanctions to

a. First: a clarification on the term “binding.”

b. Is international law, law, despite the principle of sovereignty of States (that

State concerned had previously no opportunity to exhibit its