Академический Документы
Профессиональный Документы
Культура Документы
iv. US. v. De Guzman: For proper ii. In all of the cases, Anglo-American
decisions and authorities are used and relied upon to a
construction and application of the terms and
greater or less degree. Although in many cases, the
provisions we borrowed from or modeled upon Anglo-
use is by way of dictum, nevertheless, the net result is
Am precedents, we review the legislative history of
the building up of a very substantial elaboration of
such enactments.
Anglo-American case law.
v. US. v. Abiog and Abiog: The courts n. CASES UNDER SPANISH STATUTES
are constantly guided by the doctrines of Common Law. i. We use Anglo-Am cases in
Neither ECL or American Common Law is in force in this interpreting and applying the remnants of the Spanish
Islands…save only in so far as they are founded on statutes thus showing how permanent the hold of the
sound principles applicable to local conditions and Anglo-Am Common Law has on our jurisprudence.
aren't in conflict with existing law." ii. Anglo-Am case law plays a very great
vi. What we have is a PHILIPPINE part in amplifying the law on those subjects, which are
COMMON LAW influenced by the ECL or American still governed by the remaining portions of the Spanish
Common Law. statutes, as exhibited in the groups of cases cited in
vii. A great preponderance of the the footnotes.
jurisprudence of our jurisdiction is based upon Anglo- iii. Anglo-Am case law has entered
American case law precedents-exclusively in applying practically every field of law and in the large majority of
those statutory laws which have been enacted since such subjects has formed the sole basis for the
the change of sovereignty and which conform more or guidance of the Court in developing jurisprudence.
less to the American statutes, and-to a large extent in iv. The result is that we've developed a
applying and expanding the remnants of the Spanish Phil. Common Law which is based almost exclusively,
codes and written laws. except in cases where conflicting with local customs
k. PHILIPPINE STATUTE LAW and institutions, upon Anglo-Am Common Law.
i. The chief codes of Spain that were o. COLLATERAL INFLUENCES
extended to us were as follows: Penal Code, Code of i. There are no digests of Spanish
Commerce, Ley Provisional, Code of Criminal decisions to aid the study of Bench and Bar vs. the
Procedure, and Code of Civil Procedure, Civil Code, abundance of digests/reports/textbooks on English/Am.
Marriage Law, Mortgage Law, Railway laws, Law of courts.
Waters. ii. There is a prolific use of Anglo-Am
ii. There were also special laws having authorities in the decisions of the court, plus, the
limited application. available sources for study and reference on legal
iii. The foregoing written laws had theories are mostly Anglo-Am
acquired the force of statute law by change of iii. Therefore, there has been developed
sovereignty. and will continue a common law in our jurisprudence
iv. There was no properly called Case (i.e. Phil Common Law) based upon the ECL in its
Law of Spain since Spanish jurisprudence does not present day form of an Anglo-Am CL, which is effective
recognize the principle of Stare Decisis. in all of the subjects of law in this jurisdiction, in so far
1. Manresa' s discussion of Art. 6 of the Civil shows how as it does not conflict with the express language of the
far from a case law system is jurisprudence. Spanish written law (where the remnants of the Spanish written
courts are governed by: law present well-defined civil law theories) or with the
a. first, by written law local customs and institutions.
b. 2nd, by the customs
of the place (derives its force because it is the +SANTOS V COURT OF APPEALS
acknowledged manner on how things are done VITUG; January 4, 1995
and not jurisprudence)
c. 3rd
,by judicial decision (when in practice, these FACTS
were considered last; the development of case - Leouel Santos, then a First Lieutenant of the Philippine Army,
law was impeded because the courts were free got married with Julia Bedia on Sept. 20, 1986. They lived with
to disregard any information or decisions of Julia’s parents in La Paz, Iloilo. Their son, Leouel Santos, Jr. was
other courts.) born on July 18, 1987.
- They started to have problems: (1) frequent interference of
d. 4th, by general Julia’s parents (2) when & where they’d start living
principles of law independently (3) Leouel’s spending a few days with his
l. SPANISH STATUTE LAW parents.
i. All portions of political law were - Julia left for the US to work as a nurse on May 18, 1988. She
abrogated immediately with the change of sovereignty only called up Leouel, for the first time, seven months after she
ii. All Spanish laws, customs, and rights left with promise to return after her contract expires on July
of property inconsistent with the Constitution and 1989. She didn’t come back.
American principles and institutions were superseded. - Leouel had training in the US and looked for Julia but never
iii. It was as if Congress had enacted found her.
new laws for the Philippines modeled upon those same - He filed a case for voiding their marriage under Art 36 of the
Spanish statutes. FC. Leouel claims that Julia’s failure to communicate with him &
m. CASES UNDER AMERICAN DERIVED STATUTES inform him of her whereabouts are proof that she’s
i. It appears that the bulk of present psychologically incapacitated to comply with the essential
day Statute Law is derivative from Anglo-American obligations of marriage.
sources; derivative in a sense of having been COPIED, - Julia denied her husband’s allegations saying it was her
and in the sense of having been enacted by Congress husband who was irresponsible & incompetent. She filed a
or by virtue of its authority. manifestation stating that she would neither appear nor submit
evidence. Trial court & CA dismissed the complaint.
LAW 115: LEGAL HISTORY A2010
3
Prof. Baviera: suggested that word “mentally” be
ISSUE deleted
Was Julie Santos psychologically incapacitated, thus rendering
the marriage void? J. Caguioa: (7) refers to psychological
impotence—J.Puno: sometimes a person may be
HELD psychologically impotent with one but not with
No, thus marriage still valid. Article 36 of the Family Code another.--- J.Luciano: it is called selective impotency
cannot be taken independently of but must stand in conjunction Dean Gupit: confusion lies in the fact that in inserting
with, existing precepts and laws on marriage. “Psychological the Canon Law annulment in the Family Code, the
incapacity” refers to the mental incapacity of a party to the committee used a language which describes a
marriage to be truly incognitive of the basic marital covenants. ground for voidable marriages under the Civil Code.
The facts were not enough to show psychological incapacity. J.Puno: in Canon Law, the defects in marriage cannot
What was shown was lack of willingness to comply with marital be cured
obligations. (Note: In psychological incapacity these 3 must be J. Caguioa: insanity is curable and there are lucid
present and proved: a. gravity that would really render one intervals (thus only ground for voidable marriage)
incapable of carrying out the ordinary duties in marriage b.
juridical antecedence means it should be rooted in history,
J.caguioa: there is vitiation of consent because
one does not know all the consequences of
existing prior to the marriage c. incurability including cure that
marriages; in the case of incapacity by reason of
is beyond the party’s means.)
defects in the mental faculties, which is less than
insanity, there is a defect in consent and therefore it
Obiter
is clear that it should be a ground fore voidable
- Leouel asserts: “There is no love, there is no affection for
marriage because there is appearance of consent—PI
him because respondent Julia Bedia-Santps failed all these years
does not refer to mental faculties and has nothing to
to communicate with the petitioner. A wife who does not care to
do with consent; it refers to obligations attendant to
inform her husband about her whereabouts for a period of 5
marriage; ultimately, consent in general is
years, more or less, is psychologically incapacitated to comply
affected but he stressed that his point is that it
with the essential marital obligations of marriage. Respondent is
is not principally a vitiation of consent since
one such wife.”
there is a valid consent
- Deliberations during the sessions of the Family Code
Revision Committee: J.Puno: even the bearing of children and
- lifted from Canon Law: cohabitation should not be a sign that PI has been
Canon 1095. They are incapable of contracting marriage: cured
3. who for causes of psychological nature are unable J. Caguioa: (on the suggestion that a psychiatrist be
to assume the essential obligations of marriage. invited) PI is not a defect in the mind but in the
understanding of the consequences of marriage
- original version: (7) “those marriages contracted by any The idea in the provision is that at the time of the
party who, at the time of the celebration, was wanting in celebration of marriage, one is PI to comply with the
the sufficient use of reason or judgment to understand essential marital obligations, which continues and
the essential nature of marriage or was psychologically or later becomes manifest
mentally incapacitated to discharge the essential marital Judge Diy suggested mental and physical
obligations, even if such lack of incapacity is made incapacities, which are lesser in degree than PI, be
manifest after the celebration.” included—Caguioa said that mental and physical
- Comments/remarks of drafters: incapacities are vices of consent while PI is not a
J. Reyes: proposed using “wanting in sufficient species of vice of consent
reason” Bishop Cruz: psychological/mental impotence is an
J. Caguioa: pointed out that the idea is that invention of some churchmen who are moralists but
one is not lacking in judgment but that he is not canonists, that is why it is considered a weak
lacking in the exercise of judgment; lack of phrase.—J.Caguioa: remarked that they deleted the
judgment would make the marriage voidable word “mental” precisely to distinguish it from vice of
Sempio-Dy: lack of judgment is more serious than consent; that PI refers to lakc of understanding of the
insufficient use of judgment and yet the latter would essential obligations of marriage
make the marriage null and void and the former only With this common provision in Civil Law and in Canon
voidable Law, are they going to have a provision in the Family
Code to the effect that marriages annulled or
J. Caguioa: explained that the phrase “was declared void by the church on the ground of PI is
wanting in sufficient use of reason or judgment to automatically annulled in Civil Law?—NO
understand the essential nature of marriage” refers Prospective/Retroactive application?—Diy:
to defects in the mental faculties vitiating consent, retroactive (to answer the problem of church-
and the idea is lack of appreciation of one’s annulled marriages)
marital obligations Reyes and Puno: concerned about the avalanche of
Sempio-Dy: raised the question, “since insanity is cases; votation: 3- prospectivity, 5- retroactivity, 1-
also a psychological or mental incapacity, why is abstained
insanity only a ground for annulment and not for the
declaration of nullity? Prescriptive period of 10 years within which
the action for declaration of nullity of the marriage
J. Caguioa: (in reply) in insanity, there is should be filed in court
the appearance of consent, which is the reason - IN SUM:
why it is a ground for the voidable marriages, while Family Code Revision Committee in ultimately
subparagraph (7) does not refer to consent but to the deciding to adopt the provision with less
very essence of marital obligations specificity than expected, has so designed the
LAW 115: LEGAL HISTORY A2010
4
law as to allow some resiliency in its - Prior to November 1953, Nena Micaller was earning P4.80 a
application. day. After every New Year, she was given from P180 to P200 as
bonus whereas the other employees were only given P60. For
Sempio-Diy: committee did not give any
three consecutive years, she was the best seller, the most
examples of PI for fear that the giving of examples cooperative and most honest employee. One week before
would limit the applicability of the provision under October 12, 1953, she organized a union among the employees
the principle ejusdem generis; judge to interpret it of the store, which was later affiliated with the National Labor
on a case-to-case basis, guided by experts and Union. The Court of Industrial Relations (CIR) found petitioners,
researchers, and decisions of church tribunal (not guilty of unfair labor practice and ordered them to pay a fine of
binding but may be given persuasive effect) P100.
Fr: Orsy: (on the framing of the canon) from - Petitioners contend CIRs findings:
psycho-sexual to psychological anomaly was (1)that Nena Micaller was dismissed because of her
eliminated; the cause of the incapacity need not membership in the National Labor Union and her union
be some kind of psychological disorder; PI activities;
defies any precise definition since psychological (2) that petitioners have committed unfair labor practice; and
causes can be of an infinitive variety (3) that petitioners can be legally punished by a fine of P100.
Points 1 and 2 involve questions of fact. The Industrial Court has
In a book by Gramunt, Hervada & Wauck: the made a careful analysis of the evidence and has found that
incapacity consists of (a) a true inability to commit petitioners have really subjected complainant and her co-
oneself to the essentials of marriage, (b) inability to employees to a series of questioning regarding their
commit must refer to the essential obligations of membership in the union or their union activities which in
marriage, (c) inability must be tantamount to contemplation of law are deemed acts constituting unfair labor
psychological abnormality (not merely difficulty of practice [Section 4, (a) (4), Republic Act No. 875].
assuming the obligations) - Whether CFI is justified in imposing a fine not only upon Yu Ki
Sempio-Diy: approved of Dr.Velolo’s work who Lam, who was the manager of the store, but also upon Richard
opines that PI must be characterized by gravity Yang, Yu Si Kiao and Helen Yang, who were mere owners.
(that the party would be incapable of carrying out - Petitioners contend that section 25 of Republic Act No. 875
ordinary duties required in marriage), juridical being penal in character should be strictly construed in
antecedence (rooted in the history of the party) favor of the accused and in that sense their guilt can only
and incurability (even if it were, cure would be be established by clear and positive evidence and not
beyond the means of the party) merely be presumptions or inferences as was done by the
The use of the phrase PI has not been meant to Industrial Court.
comprehend all such possible cases of psychoses as - The evidence as regards unfair labor practice with reference
extremely low intelligence, immaturity, and like to the three above-named petitioners is not clear enough to
circumstances serve as basis of their conviction for unfair labor practice
and the fine imposed upon them is unjustified.
Art.36 can’t be taken and construed
independently of, but must stand in conjunction with, ISSUE
existing precepts in our law on marriage. PI should WON the Court of Industrial Relations has jurisdiction to impose
refer to no less than a mental (not physical) the penalties prescribed in section 25 of Republic Act No. 875.
incapacity that causes a party to be truly
incognitive of the basic marital covenants...to HELD
live together, observe love, respect and fidelity and "SEC. 25. Penalties. - Any person who violates the
render help and support... To confine it to the most provisions of section three of this Act shall be punished by a
serious cases of personality disorders clearly fine of not less than one hundred pesos nor more than one
demonstrative of an utter insensitivity or thousand pesos, or by imprisonment of riot less than one
inability to give meaning and significance of month nor more than one year, or by both such fine and
marriage... must exist at the time of the imprisonment, in the discretion of the Court.
celebration of marriage... does not envision an "Any other violation of this Act which is declared
inability to have sexual relations unlawful shall be punished by a fine of not less than
Until further statutory and jurisprudential parameters fifty pesos nor more than five hundred pesos for each
are established, every circumstance must be offense."
carefully examined and evaluated. Well-considered - The provision does not specify the court that may act
opinions of psychiatrists, psychologists, and other when the violation charged calls for the imposition of
experts in psych disciplines might be the penalties
helpful/desirable. - According to the SC, the said provision
notwithstanding, that word cannot refer to the CIR for
to give that meaning would be violative of the
+SCOTY’S DEPARTMENT STORE V MICALLER safeguards guaranteed to every accused by our
BAUTISTA; August 25, 1956 Constitution.
"No person shall be held to answer for a criminal offense
FACTS without due process of law" [Article III, section 1, (15),
- Nena Micaller was a salesgirl in the Scoty's Department Store, Philippine Constitution], and that "In all criminal
which was owned by Yu Ki Lam, Richard Yang, Yu Si Kiao and prosecutions the accused * * * shall enjoy the right to be
Helen Yang. Micaller filed charges of unfair labor practice heard by himself and counsel, to be informed of the nature
against her above employers as she was dismissed because of and cause of the accusation against him, to have a speedy
her membership in the National Labor Union. The employers and public trial, to meet the witnesses face to face, and to
denied the charge, saying that they dismissed Micaller because have compulsory process to secure the attendance of
of her misconduct and serious disrespect to the management witnesses in his behalf" [Article III, section 1, (17)].
and her co-employees.
LAW 115: LEGAL HISTORY A2010
5
- A comparison of the jurisdiction of the CIR and of that of the - RA 2609 uses the term urea formaldehyde (finished product)
Court of Agrarian Relations (CAR) created by Republic Act No. and NOT “urea” and “formaldehyde” (raw materials). It is
1267 well settled that the enrolled bill is conclusive upon the courts
- Similar provisions on the penalty to be imposed as regards the tenor of the measure passed by Congress and
- When Congress intends to confer criminal jurisdiction approved by the President.
upon an administrative court, it expressly says so in an 2. legislative intent
unmistakable language. Congress has made its - The petitioner contends that the bill approved in Congress
intention clear when it amended the law by eliminating contained the copulative conjunction “and” between the
entirely criminal jurisdiction originally conferred upon terms “urea” and “formaldehyde”, referring to raw materials
the CAR. 'This was made manifest when Congress and cites in support of this view the individual statements
enacted Republic Act No. 1409 repealing those of its members made on the floor of the Senate, during the
provisions affecting the criminal Act No. 1409 repealing consideration of the bill before said House. But said individual
those provisions affecting the criminal jurisdiction statements do not necessarily reflect the view of the Senate.
aforementioned (sections 7 and 10). Much less do they indicate the intent of the House of
- Using the deliberations made on the bill eliminating the Representatives.
criminal jurisdiction of the CAR, which showed the same intent Disposition Decision appealed from is affirmed.
of Congress to place the court on the same footing as the Public
Service Commission and CAR.
- In the deliberations of Congress the sponsor of the bill of the OVERVIEW OF HISTORY AND
for the amendments of the Committee to the Court of Agrarian DEVELOPMENT OF SELECTED LAWS/LEGAL
Law Mr. Francisco was asked on the reason for striking out the
phrase “not criminal in nature” in referring to kinds of questions INSTITUTIONS
and controversies the court has jurisdiction over as well as the
sentence “Criminal proceedings should be prosecuted as in
ordinary cases.” He said that the purpose of those amendments *CONSTITUTIONAL LAW*
is to remove completely from the Agrarian Court any jurisdiction
over criminal matters. In the deliberations, it was further
+CUSTOM LAW IN PRE-CONQUEST
clarified that the CAR will retain civil jurisdiction only.
- It is also clarified that the court will exercise quasi-judicial PHILIPPINES (P. FERNANDEZ)
functions and it will be similar in nature to the Public Service CH.4 “MINIMUM GOVERNMENT”
Commission and the CIR. Mr. Cuenco said that this meant that it
is unnecessary to put the proviso the Agrarian Court has no 1. BARANGAY AS POLITICAL COMMUNITY
jurisdiction over proceedings criminal in nature. Mr. Francisco - POPULATION
maintained that such amendment has to be made as RA 1267, - consisting of more or less autonomous households
previously gave the CAR criminal jurisdiction. - usually bound by ties of kinship
Ratio The power to impose the penalties provided for in - dominated by datu’s household
section 25 of Republic Act No. 875 is lodged in ordinary courts, - TERRITORY
and not in the Court of Industrial Relations, notwithstanding the - covers all land and water under the control of the
definition of the word "Court" contained in section 2 (a) of said households
Act. The decision of the industrial court in so far as it imposes a - non-arable lands (i.e. hills or forest) adjacent to above are
fine of P100 upon petitioners is illegal and should be nullified. considered communal property and available or use by all
the households in the barangay
+CASCO CHEMICAL CO V GIMENEZ - in sparsely populated areas, disputes about boundaries
often arose but controversy settled through arbitration by
CONCEPCION; February 28, 1963
neutral and impartial mediators from neighboring barangay
- POLITICAL CHARACTER
FACTS
- this is derived from the recognition of the authority of the
- CPCC is engaged in the manufacture of synthetic resin glues.
datu by every household.
It bought foreign exchange two times for the importation of urea
- authority is the acknowledgement of datu’s power and his
and formaldehyde – which are the main raw materials in the
legitimate exercise of this power according to established
production of said glues. It paid the total of P40,111.14 for
custom.
margin fee.
- reinforced by datu’s physical strength, prowess in arms,
- The petitioner sought the refund of the said amount relying
and other personal endowments
upon the Resolution No. 1529 of the Monetary Board of Central
- Actual authority is dependent on possession of essential
Bank of the Philippine, declaring that the separate importation
leadership qualities ( character, strength, sagacity)
of urea and formaldehyde is exempt from said fee.
- if weak, datu enjoys nominal power and effective authority
- However, the Auditor General of the Bank denied the claim for
will pass on to more capable hands
refund of the petitioner upon the ground that it is not in accord
- POLITICAL COMMUNITY
with the provisions of section 2, paragraph XVIII of RA 2609
- each barangay enjoyed relative independence from
(Foreign Exhange Margin Fee Law), which exempts urea
external control
formaldehyde.
- barangay had the ability and willingness to resist
encroachment from its neighbors
ISSUE
- tradition and blood ties created constraints against
WON “urea” and “formaldehyde” are exempt by law from the
intrusions (conquest and aggrandizement vs. demands
payment of margin fee.
of custom, friendship and kinship)
- even with an extraordinary datu, opportunity for
HELD
expansion of barangay authority is checked by inherent
NO.
limitations
Reasoning
- barrier of distance
1. Statutory construction/Enrolled Bill doctrine
- natural obstacles (e.g. mountains, forests, lakes)
LAW 115: LEGAL HISTORY A2010
6
- lack of effective governmental machinery to - more akin to chieftain than king; hereditary with son
administer the affairs of the territorially extensive succeeding the father
community (no bureaucracy) - real basis of power is merit instead of heredity
- basis of barangay, at the time of conquest, evolved from - authority is charisma rather than tradition
kinship-based to territorial as evidence by the fact that - ability to provide protection or compel obedience
freemen can transfer families from one barangay to any - Status as leader is more or less voluntary.
without serious hindrance and , upon transfer become - freemen can severe attachment and move to other
subjects to authority of the datu at their new place chiefs
- checks on datu’s authority were reinforced by the
2. MINIMAL GOVERNMENT autonomy of the households
- due to self sufficiency and autonomy of the individual
household 7. PREROGATIVES OF THE DATU
- no bureaucracy to run government. Basically one man rule - Veneration and respect
- only two functions discharged as political organization - offenses against him were punished with greater severity
- maintain its existence by resisting and repelling outsiders - Customary services
- preservation of peace and order within the territory - those required in the interest of the community
through methods - in cases of war
- reconciliation and mediation - in enforcement of claims against others
- prevention or redress of wrongs thru public authority - in case of attack from pirates
of datu - those required as personal service to datu
- when going on a voyage
3. NO MONOPOLY OF FORCE - when tilling, harvesting, etc.
- Because of primitive organization and resources, pre- - building, repairing house
conquest could not enforce or maintain a monopoly of force - when the datu calls for any reason
- No datu or central authority ever acquired preponderance
of physical power to place every one in his jurisdiction in 8. DATU AS CAPTAIN IN WAR
total subjection while safeguarding them from outside - When the barangay engage in war, datu acts as captain
enemies and hence has to
- This is contrasted to modern state whose efficacy rest - plan, direct, and lead the course of battle
on monopoly of force. Hence in modern states only the - exercise emergency powers over the manpower and
government can use force to compel obedience or resources of the barangay
exact compliance. As a rule in modern states, result to - conscription
violence is a crime and mere possession of weapons is - summary execution for desertion/betrayal
punished. - commandeering of property
• Civil Service Board: Appointments based on merit • Plaza Miranda Bombing (21 Aug 1971): Because of this,
GOVERNMENT IN EXILE Marcos suspended privilege of writ of habeas corpus. SC
upheld the validity of suspension (Lansang v. Garcia).
• Japanese period: There were three years of enemy
occupation- “Military Administration under Martial Law over • Declaration of Martial Law: Con-con still proceeded with
the districts occupied by the Army.” its tasks and the draft was signed on Nov.30.
• Philippine Executive Commission: A civil gov’t was • Planas v. Comelec: Because the Pres has already
established (with Vargas as chairman), with the task of proclaimed that the proposed Consti has been ratified, the
coordinating the existing administrative organs as provided question of the validity of the decree calling for plebiscite is
by statutes and customs. moot and academic.
• Laurel gov’t: He was inaugurated as President in Oct • Javellana v. Executive Secretary: “There is no further
1943. Quezon and Osmeña were evacuated to the US. In judicial obstacle to the new Consti being considered in force
Feb 1945, McArthur announced complete restoration of the and effect..”
Commonwealth gov’t.
IV. Government under New Constitution
III. Government of the Republic TRANSITION GOVERNMENT
PHILIPPINE INDEPENDENCE • Art.17 Sec.3 1973 Consti: The Constitutional Convention
• Proclaimed on July 4, 1946 in accordance with Tydings- gave the martial law government a constitutional status.
McDuffie Act
• It was the same government under the same constitution, • Aquino v. Enrile: The proclamation of martial law was
but the Philippines was now fully sovereign (at least sustained.
politically). • Aquino v. Military Commission: SC upheld the creation
PARITY RIGHTS AMENDMENT of military tribunals and their jurisdiction to try civilians.
• Bell Trade Act (30 April 1946): It was passed by US • Aquino v. Comelec: 1973 Consti confirmed the power of
Congress, which proposed to allow entry of Philippine goods the President, as Commander-in-Chief during martial law, to
into the US free of ordinary customs duties on the condition make laws.
that similar privileges be extended to US goods and that
they be allowed to exploit, develop and utilize our natural • Interim National Assembly: No date was fixed for the
resources. convening of the Assembly, which was left to the judgment
of the President. In lieu of the INA, the President exercised
• Vera v. Avelino: Three minority senators-elect (Vera, lawmaking powers with the aid of a legislative advisory
Diokno, Romero) were prevented from taking their seats council (Batasang Bayan).
due to protests against their elections. The court ruled that
under the principle of SOP, it could not order a branch of • Sanidad v. Comelec: Framers of Consti could not have
the legislature to reinstate a member. intended to prohibit its amendment before the INA was
convened. (recall: powers of Pres during times of crisis)
• Mabanag v. Lopez Vito: The 3 senators and 8
representatives did not take part in the resolution proposing • Oct 1976 referendum-plebiscite: It was proposed that
“Parity Rights” amendment, and they were not counted in the Interim National Assembly be replaced with the IBP.
determining ¾ vote requirement. The court ruled that it was Proposed amendments were ratified by people.
a political question; if ratification is political, a proposal
which leads to ratification has to be political.
• Interim Batasang Pambansa: It is composed of
incumbent President (who will become PM), elected reps
LAW 115: LEGAL HISTORY A2010
10
from various regions and sector, members of Cabinet supervision”. But the distinction was not really very clear,
chosen by President. and so the SC had to decide cases involving the
President’s power to suspend local officials. The
• Powers of IBP: movement toward decentralization started in the 1950s.
- It will have legislative powers but the President shall also 4.General theme of the Constitution-
continue to exercise legislative powers until the lifting of The US Consti was premised on a profound distrust of
martial law (Amendment 5) power, but the Phil. Consti was founded on faith in
- In the event of grave emergency or the failure of BP to act welfare state, administered by a just and responsible
on any matter that in the judgment of President requires gov’t.
immediate action, Pres may issue necessary decree which
shall have the force of law (Amendment 6)
REGULAR GOVERNMENT +CONSTITUTIONALISM IN ASIA (E.
FERNANDO)
• Parliamentary form: Legislative power is vested in
“THE AMERICAN CONSTITUTIONAL IMPACT ON
National Assembly; executive power is exercised by the
Prime Minister with the assistance of the Cabinet. PM and THE PHILIPPINE LEGAL SYSTEM”
Cabinet are agents of the NA.
Nationalism
• PM v. NA: What will keep the majority party together • Embodies principle of self-determination—one nation.
is the thought that only through unity can they maintain • Concept that a state is nothing but the juridical personification
control of the government. Election is then resorted to only of the nation.
where there is a genuine difference of opinion between
• In Asia, the blessings of nationalism were extended to them
them.
only after World War II. A number of Asian peoples of diverse
• Powers of PM: cultures but with the common objective of freeing themselves
1. Power of appointment (members of Cabinet, heads of from the grip of alien rule assumed their independent status.
bureaus and offices, officers of AFP, members of SC and other Indonesia: 1945
judges, members of Civil Service Commission, Comelec, COA) Philippines: July 4, 1946
2. Control of all ministries India, Pakistan, Sri Lanka: dissolved ties with Britain.
3. Power to contract and guarantee foreign and domestic Burma: 1948
loans Malaysia: 1957
4. Commander-in-Chief of AFP, with power to suspend Vietnam, Cambodia, Laos: 1945-1949
habeas corpus or to call martial law in times of emergency Singapore: 1965
5. Power to grant reprieves, commutations and pardons Bangladesh: seceded from Pakistan 1971
• Asian peoples, “usually cool and unemotional about political
• Judiciary: SC and lower courts existing at time of
programs, become heated over nationalism.”
effectivity of 1973 Consti were continued. Courts remained
independent of the political branches of gov’t, and SC • Stevenson: “Nationalism is rampant. And the West, identified
membership was increased to 15 Justices. with the hated colonialism, is suspect.”
• President: Symbolic head of the state who is immune • The policies adopted by the United States (upon the cession of
the Philippines) proved acceptable. Autonomy was promised,
from suits during his tenure. He is elected from among
ultimately to lead to independence. The promised
members of NA by a majority vote; he ceases to be a
independence came in 1946.
member of NA and of any political party.
• Education and health were prioritized; civil and political rights
• Special courts: were respected; civil service was efficient.
- Sandiganbayan has jurisdiction over cases involving graft • As was expected, a constitution was required for such a
and corruption practices of public officers/employees. regime. The fundamental law to be drafted was not only for
- Tanodbayan is charged with investigation of complaints the Commonwealth but for the future Republic.
regarding public office and prosecution of cases in court.
• What may be impressed with significance is not so much the
V. Philippine Government vs. American Government absence of any absence of any evidence indicative of
displeasure with or resentment against the US as a major
• Myth: The governmental system established under 1935 Western power, but the relative freedom possessed by Asian
Consti was adopted from that of US Consti (as evident in Bill nations in the framing of their constitutions upon assuming
of Rights and functions of Congress). their independence. They could examine the contents of
• Truth: It was the Jones Law of 1916, and not the US existing charters and determine which were suitable.
The US Constitution of 1787 served as a fit model.
Constitution, that served as the model for the 1935
Consti. • Influence of the US could be shown by the incorporation of
1.Allocation of powers among our units of selected provisions or doctrines traceable to her Constitution
government- (in express terms, or by implication) Holmes: “Constitutions
What was followed in the 1935 Consti was the colonial are intended to preserve practical and substantial rights, not
arrangement established by the US in the Phils. Even with to maintain theories.” It would be an error if the presence in
structure of “executive-legislative-judicial” departments the charters of the new Asian states of juridical formulations
under Jones law, there was still unequal distribution of traceable to the US Constitution were to be equated with
power (supreme executive). complete significance of what they signify for the American
2.Relation of the State and the individual- legal system.
The Consti makers were partly influenced by the success of Supremacy of the Constitution
authoritarian governments in Europe in suppressing The fundamental postulate of a fundamental law
domestic disorders and in giving economic security to the setting forth the criterion for the validity of any public act,
individual. whether proceeding from the highest official or the lowest
3.Vertical divisions of power- functionary, is basic to the American system of a constitutional
The 1934 Con-Con limited the power of central gov’t over democracy. The three departments of government in the
local governments from that of “control” to “mere discharge of the functions with which they are entrusted have
LAW 115: LEGAL HISTORY A2010
11
no choice but to yield obedience to constitutional commands. o First amendment: freedom of belief and expression,
Limits imposed must be observed whether religious or secular.
Function of Judicial Review o Fifth and Fourteenth: due process and equal protection
• Hughes: The Constitution “is what the judges say it is.” guarantees.
o Fourth, Sixth, Seventh, Eighth: rights of an accused
• In discharging the task of inquiring whether a challenged
individual.
executive or legislative action is in conformity with, or
Philippine Bill of Rights
repugnant to, its Constitution, the meaning attached to its
provisions becomes authoritative when it is the United States • The extent of the American influence in the Philippines so far
Supreme Court that speaks. This had its genesis in the as liberties of the individual are concerned is easily
Marbury decision, where the doctrine was first enunciated and discernible. One need only to look at the Bill of Rights as
applied by the Supreme Court. found in the 1935 Constitution. It is clear that the bill of rights
Judicial Review in the Philippines provision in the 1935 C was patterned after that of the United
States. (see p. 166-167 for listing of Bill of Rights)
• The Philippine Supreme Court stated in Angara v. Electoral • The practical reason was that the Convention refrained from a
Commission that the power of judicial review “is granted, if radical departure from the US constitutional system inasmuch
not expressly, by clear implication from Section 2 of Article as the Philippine Independence Act of 1934 contained a
VIII of our Constitution.” provision that the American President had to certify that the
• Judicial review is one of the principles of constitutional law constitution drafted would provide for a republican form of
binding on the territorial government established by America government and contain a bill of rights. Without such
in the Philippines. Filipino justices and judges, who with their certification, Commonwealth could not be established.
American brethren administered justice, soon realized that Unorthodoxy might have led to an indictment of the proposed
the power to pass on the constitutionality of statutes and constitution.
executive orders was part of their judicial function. • The Filipino people were familiar with such guarantees, and
• The assumption was that whenever a constitutional question the retention as worded would be most natural. Even the
was posed, the Court should act. It was expected that it would Philippine SC had for over three decades been busy at
discharge such a task without regard to political construing the fundamental rights provisions of previous
considerations and with no thought except that of discharging organic acts enacted by US for the Philippines.
its trust. The judiciary is called upon to inquire into alleged • Draft was prepared by Jose P. Laurel, the leading Filipino
breaches of the fundamental law to avoid its being infringed. authority on the subject of constitutional law and a Doctor of
Thereby no invasion of spheres appropriately belonging to the Civil Laws graduate of the Yale Law School.
political branches occurred. Bill of Rights in other Asiatic Countries
Judicial Review in Other Asiatic Countries • The influence of the United States Constitution in their
• Judicial review as a mode of assuring the supremacy of the fundamental laws was not as considerable as in the case of
Constitution is now an accepted legal institution in other the Philippines. Of those nations, the constitutions of Japan
Asiatic countries. The American influence is marked, as could and Korea contain a number of provisions of American origin.
be expected, in Japan and Korea. What is remarkable is that, Burma, India, Malaysia, and Pakistan, to a lesser degree, bear
even in those nations with previous ties to Great Britain, it has traces of American concepts. Indonesia appears to have the
found acceptance. Burma, India, Malaysia, Sri Lanka are least connection.
included. (See article for actual manifestations, p 157-161). • There is no mention in those constitutions of the cognate right
Bill of Rights of due process, probably due to the fears entertained that due
• It was not until 1791 when the first Ten Amendments were process could be availed of to press the right property to
adopted, that the United States was thought to have a unreasonable extremes.
comprehensive Bill of Rights; it was supplemented by the so- • Equality is more or less valued the same as in America and
called Civil War Amendments: the Philippines (for a discussion of provisions, see p. 175-177)
o Thirteenth: 1865, prohibited slavery and involuntary Conclusion
servitude. • The United States Constitution has had an impact, both deep-
o Fourteenth: 1868, provided national citizenship and due seated and profound, on the fundamental laws of practically
process and equal protection. all the Asiatic countries that have recently attained their
o Fifteenth: 1870, assured right to vote to any American statehood, as well as of Japan.
citizen. REASON: The US has the oldest living written Constitution. It
• It is thus rendered that what is found in a constitution is a has stood the test of time and circumstance. Through its
recognition, not a grant, or rights—and not a comprehensive judicious construction, it has been made adaptable to the
one at that. (see p. 162-164 for the Amendments) constant flux of events.
• What is embraced in the term “imperative law” is not limited
to the literal language of the provisions as found, which in
• Frankfurter: “It is not a printed finality, but a dynamic
process.”
most cases are phrased in general terms allowing a great deal
of discretion and flexibility in the application. The main • CAVEAT: In view of conditions in Asiatic countries, there
reliance, though, in ascertaining the meaning rightfully cannot be literal adherence in most cases to is leading
attached to the constitutional commands should be on US constitutional law doctrines, even on the assumption that they
Supreme Court decisions. are possessed of the highest merit. Environmental facts and
• For the US, Constitution is not merely law, it is the supreme social milieu have to be considered.
law. It is the judiciary then (ultimately SC) which “interpreted • The Bill of Rights as a limitation on the powers of government
and applied its terms as they did the language of statutes so is appreciated and to a great extent followed notwithstanding
that matters of great political import were passed upon emergency or crisis conditions.
apparently with the same ease, simplicity, and procedure as
the interpretation of a contract or the defining of the rights of
persons under a will.
+”INTRODUCTION TO MARTIAL LAW CASES”
• Fundamental rights that have found their way into Asiatic (E. MENDOZA)
constitutions may be categorized as:
LAW 115: LEGAL HISTORY A2010
12
October 22, 1950 – Elpidio Quirino was compelled to suspend 1102, proclaimed the ratification of the proposed Constitution.
the privilege of the writ of habeas corpus because of Communist The issued in the Planas case were dismissed for being moot
rebellion and academic.
- Javellana vs. Executive Secretary – Petitioners sought to
ANTI-SUBVERSION CASES prevent executive officials from implementing the provisions of
- Anti-Subversion Act of 1957 – declared the Communist Party of the new Constitution on the ground that it has not been validly
the Philippines an organized conspiracy to overthrow the ratified. The court dismissed the petition and thus proclaiming
government that there was no longer any judicial obstacle to the new
- People vs Ferrer – trial court declared the Act unconstitutional, Constitution being considered in force and effect. (issues and
violates bill of attainder, due process, equal protection, right to voting were discussed, see javellana digest)
association.
- SC reversed and upheld the constitutionality. THE MARTIAL LAW CASES
On bill of attainder – does not specify the CPP and members - With, the declaration of Martial Law, the President also
thereof. Rather it is just a prohibition against its commanded the armed forces to arrest and detain those guilty
membership of rebellion. Petitions for writs of habeas corpus then were filed
On due process claim – justified by the congressional on the behalf of those arrested.
finding of its subversive objectives - Aquino vs. Ponce Enrile – WON the court could pass on the
SC also laid guidelines for criminal prosecutions under the sufficiency of the factual bases for the proclamation of martial
Act law. Six justices voted against it, four for it. NO ruling was made
1. proof of organization’s purpose to in the case (under new Consti, 8 votes are needed). However,
overthrow government they held that Proclamation No. 1081 was valid and that the writ
2. accused’s joining such organization of habeas corpus was impliedly suspended by it.
3. accused’s doing so knowingly, willfully - Scope of martial law
and by overt acts 1. arrest and detention of those involved in the
- Early 1970’s was marked by the rise of student activism. rebellion and the imposition of conditions on those
Riding on the crest of student unrest, the CPP rebellion gained released
momentum. This necessitated the suspension, for the second 2. suspension of the writ of habeas corpus
time, of the privilege of the writ of habeas corpus on August 21, 3. trial of those charged with national security
1971. offenses by military tribunals
4. power of the President, as commander-in-chief, to
1971 HABEAS CORPUS CASES make laws
- Lansang vs. Garcia – whether the judiciary can inquire into the
sufficiency of the factual bases for the suspension of the writ. THE MILITARY TRIBUNAL CASES
The SC held that they can. The power to suspend the writ is - Aquino vs. Military Commission No.2 – SC sustained the
limited and conditional and therefore, like any other jurisdiction of military tribunals on the ground that “prompt and
constitutional limitations, those imposed on the suspension of effective trial and punishment of offenders” were essential to
the writ could be inquired into by the court. But the scope of the exercise of martial law powers.
review is limited. The court, however, after looking into the
factual bases for the suspension, said that it was not prepared THE REFERNDUM CASES
to hold the Executive had acted arbitrarily. -In December 1974, the President announced the holding of the
- In 1905, when presented with the same question, the SC held referendum on January 30, 1975. It was later postponed to
that the findings of the legislative and the executive were February 27.
conclusive upon the courts. (Barcelon vs Baker). In 1952, the - Aquino vs. Comelec – validity of decrees calling the
question again came up and the SC affirmed the Barcelon ruling. referendum. SC ruled:
- In Martial Law cases 3 years later, the court, while affirming its 1. according to the transitory provisions of the new
competence to inquire into the factual bases for the Constitution, the President was authorized to continue
proclamation of martial law, did not inquire into the evidence office beyond his four-year term.
linking the lone detainee to the rebellion. Its decision could be 2. until NA is convened, the President exercises
due to either or both these circumstances: lawmaking powers
1. the petitioner, Benigno Aquino, Jr, had been 3. calling a referendum was within his powers
charged before the military commission with 4. martial law was not antithetical to the holding of a
subversion, murder and illegal possession of firearms free referendum.
2. petitioner’s arrest had been specifically ordered by
the President and not only by a subordinate official RIGHT TO COUNSEL CASES
- The suspension of the writ continued until January 11, 1972. - The right to counsel cases are significant because a provision
Still, there were a lot of problems regarding internal security. of the new constitution was invoked by private individuals, thus,
This prompted the President to declare Martial Law on it showed that the SC has accepted the new charter.
September 21, 1972. It also enabled the Constitutional - The question in these cases was whether the right to counsel
Convention to finish its work. Its draft was approved on (article 4, sec 20) could be invoked to bar confessions obtained
November 29, 1972 and was signed the following day. The without the benefit of counsel, January 17, 1973, the date the
President then issued PD No. 73, submitting the proposed new Constitution took effect but presented as evidence in trials
Constitution to the people for ratification. occurring after that date.
- SC held that the new provision should only be given
THE PLEBISCITE AND RATIFICATION CASES prospective effect. The SC gave 2 reasons:
- Planas vs Comelec – petitioners sought to prevent the 1. if the confession was made before the 1973
plebiscite from being held. They argued that the President has Constitution took effect, the person against whom the
no power to call a plebiscite. Furthermore, they said that under confession is being given can claim no right to the
the regime of Martial Law, the people would not be free to assistance of counsel and, therefore, his confession
express themselves. cannot be deemed to have been obtained in violation
- From January 10- 15, 1973, citizen assemblies were held. On of section 20.
January 17, the President, thru Presidential Proclamation No.
LAW 115: LEGAL HISTORY A2010
13
2. to give retroactive effect to the new rule would - Part of this colonial tradition was that economic
have great unsettling on the administration of justice development in the Philippines would have to be
in this country. supported by domestic capital resources.
♦ The natural consequence of such exclusionary
policies was the inability to undertake
important development projects and
THE REFERENDUM-PLEBISCITE CASES enterprises due to lack of capital.
- Sanidad vs. Comelec – petitioners questioned the validity of • Capital Resource Requirements
the president’s exercise of constituent powers. The SC ruled that - The country requires an enormous amount of capital to
it was valid. Since th NA has not yet convened, it is necessary spur the development of public utilities and basic
for the President to act as agent for and in behalf of the people infrastructure.
to propose amendments to the Constitution. For the President to - Infrastructure enhances economic activity and helps make
decline to undertake the amending process would leave the our country globally competitive.
governmental machinery at a stalemate. The court also noted - At the GNP growth rate of 5.2-5.8% per year targeted in
that the president’s action was not a unilateral move but was the Medium term Development Plan, the Philippines has a
rather the result of the prodding of the people’s authorized savings-investment gap of P158.4B ($4.1B) for the period of
instrumentalities. (see sanidad digest for more details) 2003-2004, or an average gap of P31.7B per year.
If the country wishes to match the pre-crisis 8% growth
+”SUMMARY REPORT OF THE PREPARATORY rate of our neighboring ASEAN countries, our savings-
investment gap will be P3.091 trillion ($76.7B) for the
COMMISSION ON CONSTITUTIONAL
same 5 yr duration or an average of P618.3B per year.
REFORMS” - Statistics lead to the conclusion that domestic capital
formation is grossly inadequate. Because of this, the
PCCR was created by the Estrada administration through EO. country has thus been unable to address basic social and
No. 43 which was amended by EO. No. 70. human needs.
• Purpose: to facilitate the study of proposals on • Restrictions on Land Ownership
economic reforms that can be accomplished through - Allowing foreigners to own land is currently the subject o
constitutional amendments. much debate.
- Commission confined its review of constitutional Lands in the Phil are either private or public. And the
provisions only to those considered to be economic in issue relates only to a small portion of the total
nature Philippine land area of 30M hectares
- State was overly concerned with matters not directly Bulk of private lands are used for agricultural and
involving the economy such as politics etc. Discussion on residential use. A small portion is classified as
economic policies became secondary. commercial or industrial.
- For the first time, a deliberative non-partisan body, for the - It is this tumor estimated at less than 1% of the
sole purpose of evaluating and recommending proposals on total land area that the commission viewed as
the economic provisions of the constitution was established having relevance to foreign investment.
• Comparative East Asian Survey - The Commission recommends the liberalization
- East Asian economies’ mode of regulation is by legislative amid foreign ownership relates only to that small
action rather than Constitutional mandate. fraction.
No provisions in their constitution prescribing specific • Plenary Legislative Power
citizenship or foreign investment equity ratios similar to - In some areas of investment such as advertising or
those in the Philippine Constitution (except Thailand education, there did not appear any compelling reason to
which has a restriction on foreign ownership of mass preserve constitutional restrictions on foreign equity
media). participation.
Numerous laws and regulations in these countries exist - Any protection or regulation is better accomplished and
regulating or limiting foreign investment. can be periodically adjusted through appropriate legislation.
Economic partners in cooperation with the legislature - Economic policy-making should be the responsibility of the
are afforded the flexibility to modify economic policies country’s economic policy-planners.
from time to time without contravening the - They recommend reposing the responsibility for economic
Constitution. policy formulation in the Executive Department and
• The Origin and Impact of the Protectionist Tradition Congress.
- Some provisions in our Constitution are a continuing Policies on economic development re dynamic and
reflection of a spirit in our fundamental laws since1935 and must not be carved in stone. These questions are
were carried over into the succeeding Constitutions. better addressed by the electorally-accountable bodies
- That spirit or tradition is nationalistic protectionism as of government.
embodied in - It is important that congress be given the flexibility to
Art. XIII of the 1935 Constitution (Conservation and adopt economic policies which suit certain economic
Utilization of Natural Resources) environments.
Art. XIV of 1973 Consti (National Economy and - Economic development requires addressing many other
Patrimony of the Nation) problems aside from constitutional constraints
Art. XII of 1987 Consti (National Economy and PCCR proposed amending certain constitutional
Patrimony) provisions to address the problem areas of corruption,
- Philippine protectionism can be directly traced to US government inefficiency, peace and order and local
colonial policy government responsiveness. But the commission did
After US take over of the Philippines, US policy makers not have the power to propose amendments on those
through US Public Law 235 prohibited large American areas for despite these areas being intended for
corporate investment in agricultural and industrial economic reform, they were also political in character.
enterprises in the Philippines that would compete with Commission also proposed a transitional provision for
agricultural and industrial interests in the US. amendments that were proposed.
LAW 115: LEGAL HISTORY A2010
14
Art. XII, Section 1 poses a problem, since it dictates
ANTECEDENTS AND OVERVIEW that the economic base shall be agricultural
• PCCR was created by Pres. Estrada through EO No. 43. development and agrarian reform, producing a shift to
• It was no more than an collection of individuals under other economic models of development.
contract with the President, hired as his personal - Other existing provisions contain inflexible rules
consultants, to carry out the specific function of rendering that prevent responsive government action to
advice on certain matters that were entrusted to them for address problems in the management of economic
study. affairs.
• The Steering Committee identified 8 topics that were - State is in no position to alter policy formulations
assigned: in certain areas, because limitations or restrictions
Exploration, development and utilization of Natural are expressly stated in the Constitution.
Resources - These issues cannot be addressed by ordinary
Land ownership, Use and Disposition legislation, but require the more tedious process
of constitutional amendment.
Public Utilities and Franchises
- Congress and other institutions of government
Trade and Competition Policy
should be able to craft and formulate policies
Practice of Professions and Educational Institutions responsive to the changing economic
Mass Media and Advertising environment.
Bureaucracy, Decentralization and the Economy The Amendment Process
The Amendment Process - Constituent assembly – perceived as having the advantages of
being swifter and less costly.
THE RELEVANT PROVISIONS - Constitutional convention receives considerable support from
The committee focused its review on economic provisions, only certain sectors because it is thought to be non-partisan and
namely: independent
1. Art. XII on the National Economy and Patrimony Less susceptible to the “conflict of interest”
2. Sections 9 and 19, Article II, Declaration of Principles apprehension to the public.
and State Policies - In either case, the political considerations must be carefully
3. Section II, Art. XVI on General Provisions (relating to weighed in deciding which of these permissible modes to adopt
Mass Media and the Advertising Industry) Other Factors Affecting Foreign Direct Investment
4. Sub-section (2), Section 4, Article XIV on Education, - Common objection to Constitutional amendments is that they
Science, Technology, Art, Culture and Sports have no bearing on FDI, since foreign investors are concerned
In conducting deliberations and hearings, the various with non-constitutional matters such as graft and corruption etc.
committees narrowed the scope of inquiry to certain issues, - Advocating amendments though does not mean abandonment
hereunder described, a number of which were recurring and of governmental efforts to address these problems
common to all topics: - Recommendations call for increased efforts to ensure optimum
Citizenship Requirements conditions for successful liberalization
- A relaxation of the citizenship requirements may be General Economic Data
conducive to an investment environment with greater - Poverty and infant mortality rate
potential for attracting foreign direct investment (FDI). infant mortality rate as a key indicator of a nation’s
- Of particular concern are strict citizenship restrictions on development. High infant mortality = poverty
the management of certain enterprises where equity /malnutrition of family = poor public health service
participation of non-citizens is permitted. In South East Asia, the Philippines ranks behind
Equity Ratios for Foreign Investment Singapore, HK, Japan, Taiwan, Thailand among others
- The matter of attracting FDI is immediately affected by in terms of infant mortality.
provisions of the Constitutions prescribing limitations on
Infant mortality is due solely to poverty and
investment opportunities by requiring a minimum quantum
underdevelopment as theological and political dogmas
of Filipino ownership, educational institutions and the
have little to do with the issue.
ownership of land by corporations, participation of foreign
Population and Gross Domestic Product
equity being invariably limited to no more than 40% of a
- The lower per capita GDP in the Philippines and its high
given enterprise.
population level indicate a strain on family incomes and
Ambiguity in Language
government budgets for social services
- The 1987 Constitution may reasonably likened to an
Bank Assets as Sources of Capital and Credit
extended list of entitlements, without, however, a sufficient
- An nation’s capacity to attain development is largely defined
hierarchical guide to address competing claims.
by it’s ability to pay for its “costs”
The phraseology of Section 19, Article II on the
“costs” include capital and credit resources to support
Declaration of Principles and State Policies, aspiring for
enterprises that provide employment, generate income
an “independent” national economy “effectively
and savings, and produce commodities for
controlled” by Filipinos.
consumption and trade.
Taken together with other provisions, on Patrimony of
Much of capital and credit resources are based on bank
the nation, has thus given rise to controversial policy
assets
decisions affecting foreign investments.
- Low amount of bank assets is reflective of a nation’s ability to
Attention was also given to the clarification of certain increase capital for local investment through domestic savings
provisions that may be interpreted as constitutional of the population. As compared to other SEA countries, the
restrictions, assuming the adoption of constitutional Philippines is low in ranking.
amendments towards liberation. Gross Domestic Savings and Gross Domestic Investment
Flexibility in Policy Formulation - GDP refers to all goods produced and services undertaken
- The Constitution ahs removed from the policy-making locally.
institutions of government the prerogative to determine - Rates of GDP growth reflect the rise or fall in the standard of
and shape national economic policy in line with the living.
changing economic environment.
LAW 115: LEGAL HISTORY A2010
15
- GDP is affected by Gross Domestic Investment (GDI) which in Necessary adjustments in the economic policy have
turn is in return related to the amount of capital available from been rendered impossible by Constitutional provisions
Gross Domestic Savings (GDS) ordaining an economy based on agricultural
- The Philippines has limited capital resources compared to its development which results in confusion among policy-
neighbors, and even more limited domestic savings and makers
investment figures. - Challenge was to restructure economic policy-making
Foreign Direct Investment framework of the Constitution with a view to achieving
- Among the supplementary foreign sources of capital are reconciliation with pragmatic dilemmas presented by a complex
Official Development Assistance (ODA), loans, portfolio and competitive economic environment.
investments and Foreign Direct Investments (FDI) - To respond to this, attention was given to certain underlying
- There is not enough ODA available for the Philippines principles to ensure a more enduring yet flexible economic
- Foreign loans are also problematic because there are high cost policy.
and “country limits” related to borrowing Two notions evolved
- Portfolio investments are unreliable because of their - Notion of minimalism which describes an approach
dependence on constantly fluctuating market forces, hence characterized by the minimal use and amplified
subject to the whim of the portfolio manager, whose main statement of principles in the Constitution in order to
interest is obtaining the highest available rate of return in the avoid ambiguity in intent
various world markets - Notion of transference which leaves to legislation the
- FDI is the preferred method of capital supplementation matter of economic, trade and investment policy of
- Philippines has lagged behind its neighbor countries in adjustment.
attracting FDI Discussion on Public Utilities, Franchises and
Indications of Economic Data Infrastructure
- General Economic data shows that the economy is - Infrastructure enhances domestic and international trade and
underperforming enables a country to develop and become globally competitive.
- Constitutional traditions of nationalistic protectionism and Transportation, communication, water and power are
conservation of national patrimony now require review and re- the sectors that comprise the basic infrastructure of the
examination country.
- Economic protectionism must yield to growth policies aimed at - Prior to the Asian crisis, Malaysia and Thailand were spending
fostering prosperity and equity to uplift current poor conditions up to 3 times more than the Philippines in infrastructure
Summary of Deliberations and Discussions investments in infrastructure.
- The government’s economic managers believe that: - Following the crisis, the lack of external and internal funding
Liberalizing some of the restrictive provisions of the forced many countries including the Philippines to drastically
Constitution will promote the country’s competitiveness reduce their infrastructure expenditures by as much as 50%.
in an integrating global economy - The arguments in favor of further liberalization of public
Liberalization would also tap foreign capital as a means utilities emphasized the need for additional capital and financial
of accelerating economic growth flows into the sector in order to achieve higher economic growth
Long-term potential benefits that would be realized by targets.
the introduction and transfer of new technologies, The lack of domestic capital renders foreign direct
expert organizational and management experience, investment the most likely source for development
increased government revenues etc., far outweigh the projects.
perceived disadvantages in amending the Constitution. - Position papers from various organizations regarding the issue
Fundamental changes in the legal framework are of allowing foreigners into the management of public utilities
needed to respond to and take advantage of the supported a policy of non-discrimination and merit-based
developments in international trade and competition. selection.
On the other hand, those opposed to liberalization - On the issue of granting franchises to foreigners, the
raised three points: Commission noted the emergence of a global trend toward
1. liberalization would lead to the loss of the Filipino preference for reposing the authority in specialized, regulatory
patrimony over national wealth and natural agencies, since this would result in greater efficiency and
resources, which are limited and exhaustible expertise in the supervision of the industry.
2. there are already in place various schemes and Mass Media and Advertising
legal devices that allow foreign investment and - Includes print and broadcast media, such as newspapers,
participation in these sectors and the additional costs magazines, radio and television; advertising is the promotion via
of amending the Constitution do not justify the these media of goods and services.
incremental benefits to be derived - Capital and/or technology intensive industries which must keep
3. the incremental benefits would be very little given pace with rapid changes.
that other factors are more important in encouraging Large amounts of capital are required for the
foreign investments rather than amending the acquisition of the latest equipment and technological
Constitution innovations.
if pursued at this time, liberalization would cause - Arguments in favor of liberalizing mass media and advertising
adverse effects such as displacement of workers stressed that the constitution might be too rigid and
existing policies must be retained until our industries unresponsive, thus denying Filipinos to access to these
are stable technological innovations.
Discussion on Trade and Competition Policy - Different nationality restrictions on mass media and
- Criticism has been made that the basic legal framework of the telecommunications impede the possibility of realizing
Constitution presents practical and philosophical difficulties in convergence – the blurring of the distinction between these
approaches to economic, trade and investment policies. industries.
Inclusion in the Constitution of restrictive rules that Such restrictions give rise to lack of capital,
deprive policy makers of flexibility in policy inaccessibility of management expertise and the
formulation. inability to forge strategic partnerships with
international media companies.
LAW 115: LEGAL HISTORY A2010
16
Fear of foreign influence through control of television is
unfounded since the deterritorialization of knowledge Practice of Professions
and information dissemination has long since enabled - Current Constitutional provisions permit, in cases provided by
access to global audiences. law, the practice of professions by foreigners in the Philippines
- Competition from foreign journalists and broadcasters subject to reciprocity agreements, treaties and the like.
could possibly provide the necessary competition to - However, the notion of reciprocity for the purpose of
uplift the standard of reportage. evaluating conditions for the transnational practice of
- Objectors argued that liberalizing ownership of media will allow professions is inadequate and needs improvement.
public opinion to be molded by foreigners who may be - Commission notes the global trend favoring the liberalization
motivated by profit and not national interest. of transnational practice of professions and urges the court to
However, it has been observed that Filipino owners of take positive steps for the adoption of rules and other guidelines
mass media can equally be driven by profit and not by for opening up the practice of law.
national interest. Land Ownership, Use and Disposition
It is also argued that Filipino culture is already under - The responsibility for approving, monitoring and regulating
attack from Western Values which are now freely and land conversion from agricultural use to industrial, commercial
widely available an the Philippines and may eventually and residential use is not well defined and lies with several
result in the loss of a national identity. government bodies such as DAR, DOA, LGUs, Housing and Land
- Top 10 advertising firms in the country are partly Use Regulatory Board
foreign-owned. - Commission recommends to Congress that, as a condition sine
- Further increase in foreign participation would qua non to allowing foreigners to own commercial or industrial
adversely affect the viability of Filipino advertising land, it shall enact Land Use Law and designate the agency
firms and stunt the development of local talent. which will have exclusive jurisdiction over matters of land use
- No constitution except for the Philippine one which and classification
includes advertising in its provisions. - Liberalizing ownership of industrial and commercial land
♦ Commission believes that advertising should emphasize the increase in investment opportunities
be regulated by law, rather than by the Logical consequence of the desire of every
Constitution. entrepreneur to control the factors of production.
Educational Institutions - Those opposed to liberalization fear that the Filipinos might
- Participation of an educated citizenry in governance is lose control of their land and contend that there is a lack of
essential to the vitality of a democratic state. empirical evidence to show the claim of increased investments
- Education is an end itself, as well as a means to an end in that die to liberalization
it empowers people to maximize their contribution to social, Natural Resources
political, and economic development. - Liberalizing the energy and mining sectors stress that
- Statistics show that only 4 in every 10 secondary students liberalization would support and create jobs through the inflow
continue their education at the tertiary levels. of capital, technology and expertise
- Maintaining a virtually closed educational system makes the - Removal of Constitutional limits will not result in total
financial cost of its upkeep almost exclusively a responsibility of liberalization, but merely transfer the regulation of these sectors
government. to Congress.
This could be shared with or alleviated by investments - The resulting flexibility will enable economic planners to
in schools from foreign institutions and the like. develop economic policies responsive to changing
- Globalization has reinvented the concept of nationalism. circumstances.
- Opponents of liberalization maintain that the use of Philippine
Education today is a global concept, requiring that
resources should be reserved to Filipinos as liberalization would
Filipino graduates are able to compete with their
legitimize exploitation of foreign nationals of our natural
counterparts from other countries.
resources
No relationship between patriotism and nationalism
Survey of Asian Constitutions and Regulations
and the citizenship of owners and the citizenship of
Constitutional Restrictions
owners and administrators of schools.
- Survey revealed that no provisions in the constitutions of Asian
- Even under a colonial educational system, Filipinos
countries which contained specific restrictions or limitation in
opted for independence.
foreign investment in the development of natural resources or
At present, the Constitution already allows foreigners, grant of public utilities or infrastructure franchises.
through religious orders and mission boards to own and - No constitutional restriction affecting foreign investment in the
operate schools. areas of advertising, education, the practice of professions and
There appears to be no compelling reason to land ownership. Except Thailand which has a restriction on mass
distinguish between religious orders and mission media.
boards on the one hand, and private educational Legislative and Regulatory Restrictions
institutions from other countries, for example, on the - What are important are the legal approaches and formulations
other. of policy that have been adopted with respect to foreign
Constitutional restrictions on foreign control of investment in the countries surveyed.
educational institutions deter the entry of foreign - There appears to be a consistent rule that governments and
capital and modern facilities and equipment. their legislatures are allowed some degree of flexibility in
- Investors would prefer to have a say on how their regulating economic matters and issues relating to foreign
money would be utilized investment.
Foremost objection to liberalization is the fear that - This is achieved by placing these matters at the legislative
foreign participation might influence the education of level rather than at the constitutional level. Only in the
our youth Philippines are regulations on foreign investment located in the
There are criticisms that the Philippine educational constitution
system has been producing professionals and Conclusion and Recommendations
consumers rather than citizens - Provisions relating to economic principles ought to be clarified
and reviewed with a view to avoiding ambiguity, moderating the
LAW 115: LEGAL HISTORY A2010
17
tradition of protectionism, and affording flexibility to future CH.5 “SERVITUDE AND DEPENDENCY”
policy-makers
- Endorses the advisability of revising the provisions pertaining
I. The Servile Class
to the economic and planning agency and the central monetary
- Society involves order of power and order of labor. Power to
authority
rule must take account of interests.
- Afford maximum flexibility to the Congress and the country’s
- Ruler and warriors who maintained authority could not
economic managers to determine from time to time, pursuant to
produce goods they needed; others had to produce for them
current economic needs and circumstances of the country and
- In pre-conquest society, prevalent economic org was
the particular industry sector, policy and regulation relating to
Household economy, production based on household
foreign investments
consumption.
- Endorses the concern for the issue on improving the
- Household needs expanded. More hands were needed.
government bureaucracy and promoting honesty and
Resources were abundant, production was limited. This gave
transparency in government as an essential component for
rise to Servile or dependent class (alipin).
providing an efficient and productive business and investment
- Trade with foreign lands expanded due to demand for jewel,
climate
metal, food. Production for barter had to accelerate.
- Foreign technology and expertise by way of international
- There are chiefs with hundreds of slaves, these were
assistance should be encouraged as well as the vital need for
emergent entrepreneurs heralding market economy.
the improvement of the Master Rehabilitation and Investment
Plan for the revitalization of the fisheries and timber industry.
II. Distinguished from Slavery
- The revision of the provision regarding the issue of exclusivity
- Spanish referred to servile class as slaves, this is misleading
of marine resources so as to allow a measure of flexibility to
but understandable.
support Filipino initiative and subsequent scientific or
- Alipin was under compulsory obligation to serve household
commercial cooperative ventures with foreign counterparts in
and was subject to transfer.
conformity with international treaty commitments and the
- Unlike classical slaves, who were chattels w/o personal rights,
pertinent growth and economic policies of the government.
alipin has rights. Marriage between alipins and between alipin
- Ownership of agricultural and residential land ought to remain
and freeman were recognized. Alipin could own/inherit
with Filipinos, but that, to further economic growth and
property, execute contracts, set himself free through
productivity in other sectors, the ownership of private lands
redemption of debt.
devoted to commercial or industrial uses be liberalized and
- Classical slave concept didn’t allow partial slave status. Alipin
made available to foreign investors in accordance with
allowed partial alipin status.
guidelines established by law.
- Role of foreign expertise and managers ought to be recognized
III. Servitude as Consequence of Surrender
and that these are matters better left to laws and regulations.
- Outsider alipin – from other places after plundering operation,
Grantees and franchises, if corporation, ought to be corporations
capture in war, etc.; more onerous burdens
incorporated under Philippine law
- Native alipin – not slaves in true sense; status akin to debt-
- Regalian doctrine coupled with the inherent authority of
peonage; debtor surrendered his body for rendition of services;
government to exercise regulatory powers over these sectors
alipin until payment of debt without losing personal rights
(natural resources development and public utilities), as well as
plenary power of Congress, provide ample safeguards for the
IV. Servitude as Off-shoot of Sangla
effective control and management of these sectors and the
- Legal concept of sangla was widespread but land had little or
protection of state interest in accordance with pragmatic
no value. Where debtor had exhausted property, his body
principles of stewardship.
becomes security for repayment.
- Nationality and capital ratio requirements for educational
- Because alipin was merely security, there’s no ownership over
institutions need not be addressed in the Constitution and are
the person; there were relatives being in servitude to one
better left to legislative or policy determination, consistent with
another.
the principle of academic freedom.
- Alipin can be compared to present day share tenants
- Nationality and capital ratio requirements for mass media and
(kasama).
the advertising industries need not be addressed in the
Constitution, given the large capital requirements and the rapid
V. Causes of Servitude
development of technology, permitting convergence of
- Two principal causes: capture in war/plundering and non-
broadcast media, computers, the internet and
payment of debt
telecommunications
- Debt as a cause of servitude had its origin in contract or in
Maximum flexibility ought to be afforded congress and wrong. In contract, failure to pay on time. In wrong, penalty or
policy makers to enable formulation of policies fine. In case of crimes where death was prescribed, injured
responsive to technological advances. party could authorize commutation so instead of being put to
- Concludes that the most cost-effective option would be to death, offender becomes alipin to party.
convene Congress as a constituent assembly
- That a transitory provision that implements liberalization VI. Alipin Namamahay
pending action by Congress, would be useful and beneficial - Types or classes of servitude or dependency is based on
- Commission recognizes that the proposed amendments would extent to which they were under compulsory service.
not guarantee immediate inflow of increased foreign investment - Part time – alipin namamahay (Tagalog), tumuranpoc and
for coupled with these, other factors need be addressed such as tumataban (Visayas), resembled kasama/tenant, lived in own
political and regional stability, improved bureaucracy and the house, had ownership, can’t be sold, children inherited rank and
lke. property of parents, shared harvest with master, rendered
incidental services
*LABOR LAW* - male tumuranpoc – give 1 day of every 4
- male tumataban – gave 5 days of each month; rice if
service is not rendered
+CUSTOM LAW IN PRE-CONQUEST - female tumuranpoc – half of each month weaving cotton
PHILIPPINES (P. FERNANDEZ) - female tumataban – spin specified amount of cotton balls
LAW 115: LEGAL HISTORY A2010
18
- Full time - By 1972, foreign debt was $1.71B. 1990, $28.41B.
- massive unemployment, income disparity, declining standard
VII. Alipin Saguigilir of living
- Ayuey (Visayas) – virtually all services to the master 3 days
out of 4, no own house II. Low Wages
- entitled to hold and enjoy earnings, sometimes were able to - Minimum wage law was passed in 1936 (Commonwealth Act
redeem debt and regain freedom 103) but min wage was fixed only in 1951.
- unlike namamahay, could be transferred by one master to - 1970s: gov’t started to periodically adjust minimum wage
another (outsiders); native saguiguilir were rarely sold levels
- Min daily wage rates could not meet workers’ needs
VIII. Mixed Marriages and Succession to Servitude - Low wages were result of gov’t cheap labor policy, dictated by
- Generally, alipin married alipin but no bar to marrying broader exigencies of export-oriented development, attracting
freeman/woman. More frequently, freemen took female alipin foreign investments, stabilizing international value of Philippine
as concubine currency.
- Both alipin parents:
- followed condition of parents if both namamahay or III. Restrictive Labor Standards Laws
saguiguilir - Min wage laws apply only to wage and salary earners who are
- if one was namamahay, other was saguiguilir, children less than half of total labor force. There are also many
followed condition of parent to whom they were allotted. exemptions.
Odd pertains to father. Even pertains to mom. - First min wage law, RA 602 in 1951 did not cover farm
- if married alipin belonged to diff masters, children tenants, domestic servants, workers in retail/svc with not more
pertained to master of parent to whom they were allocated. than 5 employees, employees in agri enterprises of < 12 ha.
- Freeman and alipin concubine - More exemptions:
- children are free; also if children are by freewoman and - homeworkers in manual needle work, RA 812
alipin outside wedlock - mining employees, RA 4180
- if alipin belonged to another, child was half-free if - those in cottage industry registered with National
recognized by freeman; otherwise, child is alipin Cottage Industries Development Authority (NACIDA)
- same allotment rules apply - After Martial law, more exemptions:
- if half-alipin married free person, children were alipin only - enterprises in welfare areas
in fourth part; if he married an alipin, children were free - distressed employers
only in fourth part - househelp, fam drivers, persons in personal svc, those in
registered cooperatives
IX. Allocation of Services of Offspring - workers in approved apprenticeship program
- There were cases of same person being alipin to two or more - After People Power, more exemptions:
households. Where duly wedded alipin belonged to diff masters, - househelp, fam drivers, persons in personal svc
children were shared between them equally. - retail sale/svc workers if not more than 10 workers
- workers in new enterprises outside NCR and Export
X. Termination of Servitude Processing Zone for not > 2-3 yrs
- Servitude generally lasts for lifetime. But unlike slaves, there - workers with basic wage of > P100/day
are methods for effectuating emancipation:
- redemption – alipin redeemed freedom by payment of IV. Repressive State Policies on Trade Unionism
indebtedness or purchase price if he was sold. In partial - 1940s: trade unionism governed by CA 103, imposed
servitude, master must accept the amount. In full compulsory arbitration
servitude, redemption must be by agreement. Alipin - CA 213 required labor unions to register with Dept of Labor.
delivers half of his belongings to ex-master in ceremony. Government abused this requirement.
- manumission – master set alipin free as gratuitous and - 1953 Magna Carta of Labor/RA 875 emphasized collective
liberal act usually on deathbed bargaining, grievance, voluntary arbitration; start of more
- when maharlika or freeman took his female alipin as democratic climate
concubine unless she did not bear any children - Proclamation 1081: Martial law
- Labor Code of the Philippines/PD 442, required labor
federation to organize local unions only within industry,
+TRADE UNION BEHAVIOR IN THE
empowered Labor Dept not to issue registration
PHILIPPINES (L. DEJILLAS) - law prohibited security guards, managerial employees from
CH.2 “PHILIPPINE CONDITIONS AND THE joining/forming unions
LABOR MOVEMENT, 1946-1990” - banned unions from accepting persons from subversive orgs
or from engaging in subversion
- gov’t required submission of list of officers, minutes, members
I. Introduction
list, signatures of half the employees
- 1946-1950: Phils tried to restore economy through import-
- Certification elections also restricted unionism. Unions must
substitution industrialization
be recognized by employers as exclusive bargaining agent of
- 1950-1960: highest per capita GDP growth rate among
employees. Under PD 442, question of representation is
SEAsian nations
resolved in certification election by Labor Department. Workers
- 1960-1980: lowest per capita GDP growth rate among
select their union through secret ballot. However, filing petition
SEAsian nations
for certification election required written consent of at least
- Import-substitution failed because:
30%, later 50% of employees.
- labor surplus not eliminated
- government cancelled registration of supervisory unions and
- failure to expand industrial growth
those of security guards
- failure to reduce dependence on imports
- labor federations were told to stop organizing if there is
- 1960s: promotion of export and liberalizing foreign trade.
already an industry union
While exports improved, they performed poorly compared to
imports (Balance-of-trade deficit from 1946-1990)
LAW 115: LEGAL HISTORY A2010
19
- ban on organizing gov’t employees, incl GOCC employees, - DoL invoked law to dissolve unions with communism and
employees of religious, charitable, medical and educational non- arrest leaders. Labor Dept canceled registration of Federacion
profit institutions Obrera de Filipinas (FOF)
- pre-martial law trade unions could be canceled. Union - Labor Sec revoked CLO, claiming subversion
organizing declined. - Cipriano Cid organized Philippine Association of Free Labor
- Under martial law, strikes were banned. Labor Code Unions (PAFLU), resembling CLO, attacked foreign interference
prohibited collection of strike contributions, ordered conversion and promoted socialism
of strike funds to labor research and education funds. - National Association of Trade Unions (NATU) was organized,
- PD 849 partially lifted ban on strikes except in vital industries long-range objective was emancipation of working class from
(transpo, communication, fuel gas, gasoline, banking, hospital, oppression
school, etc.) - Olalia organized National Federation of Labor Unions (NAFLU),
- 1981: when martial law was lifted, strikes jumped. But later advocating against capitalist system
that year, BP 130 made it almost impossible to strike. - Olalia organized Malayang Samahang Magsasaka (MASAKA),
- 1982: BP 227 guaranteed free ingress/egress from company promoting nationalist industrialization, became largest peasant
hit by strike, made unlawful to obstruct entry/exit association until martial law. Later, MASAKA split but both
- 1985 LOI No. 1458 factions remained firm in fight.
- allowed replacement of workers who defied return-to- - Pagkakaisa ng mga Magbubukid sa Pilipinas pressed for full
work order implementation of the Agricultural Land Reform Code and the
- directed military/police to implement return-to-work abolition of tenancy.
- empowered govt to elevate dispute to compulsory - Unions were strengthened by national democratic forces; first
arbitration was Socialist Party of the Philippines (SPP), the national-
- From 1981 to 1985, strike average rose bec. Of: democratic alternative to the anti-national and colonial-oriented
- lifting of martial law politics
- worsening economy - 1968: CPP-Guerrero wing emerged and organized New
- resurgence of revolutionary unionism People’s Army (NPA)
- assassination of Ninoy Aquino - Progressive Workers’ Council (PWC) brought together all
- sprouting of revolutionary movements and political revolutionary labor leaders in the country. Basic program was a
parties militant struggle.
- dissatisfaction against Marcos admin - Other national-democratic orgs:
- people-based movements and radical Church - Kabataang Makabayan/KM
- economist unions and social reformers - Movement for Advancement of Nationalism/MAN
- 1986: freer industrial relations; restoration of right to unionize - Samahang Demokratiko ng Kabataan/SDK
of security guards, GOCC employees and supervisory - Malayang Pagkakaisa ng Kabataang Pilipino/MPKP
employees; allowed automatic certification elections and - National Democratic Front/NDF
reduced signature requirement for petition for certification - Other sectoral groups:
election to 20% - Rebolusyonaryong Kilusan ng Magsasaka
- 1989: RA 6715 repealed repressive provisions of Labor Code - Katipunan ng mga Gurong Makabayan
- Malayang Kilusan ng Bagong Kababaihan
V. The Philippine Labor Movement - Makabayang Samahang Pangkalusugan
- Trade unionism grew under economic underdevelopment - Martial law halted militant activities, after, they acted covertly
- Types of unionism until formation of Kilusang Mayo Uno (KMU), concrete
- revolutionary expression of revolutionary unionism.
- economist
- moralist and ethical
- democratic and political
- protective/defensive
- Union tendencies urged by VII. Democratic and Political Unionism
- expansion of Communist Party of the Phils - 1950: govt organized National Confederation of Trade
- govt attempts to control labor movement Unions/NACTU to counteract communism, led by Labor Sec Jose
- arrival of US Mission by Daniel Bell, led to passage of Figueras. His campaign was effective and at one time, all
industrial relations law in 1953 registered unions were under govt control.
- involvement of Society of Jesus and other Christian social - But NACTU was just for promotion of political ambition of
movements Figueras who ran for senator.
- social-democratic and democratic-socialist reformers led - Govt adopted highly selective policy of repressing activities of
to Partido Demokratiko-Sosyalista ng Pilipinas (PDSP) communist-dominated unions while favoring conservative
unions willing to join NACTU.
VI. Revolutionary Unionism - Federation of Free Workers/FFW after Society of Jesus became
- surfaced with founding of Congress of Labor Organization most vocal critic of govt control over and company domination
(CLO) organized by guerilla and labor leaders, affiliated with of trade unions.
World Federation of Trade Unions (WFTU), a Russian based - After passage of 1953 Industrial Peace Act/RA 875, FFW’s
communist org struggle subsided, rekindled in 1970s
- CLO under Amado Hernandez - 1973: Nagkakaisang Partido Demokratiko Sosyalista ng
- Pambansang Kaisahan ng mga Magbubukid (PKM) became Pilipinas/NPDSP was born, later became Partido Demokratiko
strongest peasant org after war in Central Luzon Sosyalista ng Pilipinas/PDSP
- Democratic Alliance (DA) presented govt with radical - After EDSA, PDSP headed formation of Lakas ng Manggagawa
demands: equitable share of harvest for tenants, recognition of Labor Center/LMLC
all trade unions and right to collective bargaining, outlawing of - Other sectoral orgs: farmers, youth, students, etc.
company union, loan for tenants, end to usury, end to
landgrabbing and arbitrary eviction; DA was shortlived. VIII. Economist Unionism
- Partido Komunista ng Pilipinas (PKP)/Communist Party of the
Philippines
LAW 115: LEGAL HISTORY A2010
20
- 1950s: emergence of economic unionism when American - Guilds planted the seeds of trade union movement.
advisers studying labor conditions led to passage of Industrial - Workers constituted bulk of Katipunan
Peace Act. - beginnings of political unionism
- Trade unions that emerged after 1953 were largely business - Developments:
and social welfare institutions. - longest revolt by Dagohoy
- Most dominant and stable unions: - British invaded Manila as part of 7yr War between her and
- National Labor Union/NLU France and Spain
- Associated Labor Union/ALU - Phils returned to Spain. British proved Spain can be
- Philippine Labor Alliance Council/PLAC defeated.
- Pambansang Kilusan ng Paggawa/PKP - Phils allowed reps in Spanish Cortes
- Unions along industry lines: - Abolition of galleon trade bet. Manila-Acapulco
- Philippine Transport and General Workers - Manila opened to world trade; British and Americans
Organization/PTCWO establish business
- Union de Obrero Estivadores de Filipinaas/UOEF - Gremios existed: Gremios de Escultures del Barrio de
- Philippine Social Security Labor Union/PSSLU Sta. Cruz, Gremio de Obreros de Sampaloc, Gremio de
- National Mines and Workers Union/NAMAWU Litografos and Gremio de Carpenteros
- Confederation of Unions in the Government Corporations - Mutiny in Cavite, later quelled. GOMBURZA arrested and
and Offices/CUGCO executed.
- Union de Impresores de Filipinas/UIF - Phils’ first proletarian strike in Cavite arsenal
- Some unions by area: Mindanao, Southern Phils, Rizal, etc. - First printers’ strike in Pampanga, later established
- Labor leaders formed trade union centers or alliances. Gremio de Impresores
- Philippine Labor Unity Movement/PLUM - Propaganda movement launched
- Philippine Trade Union Center/PTUC - Katipunan established
- Katipunan ng Manggagawang Pilipino/KMP - Second strike in an Escolta printing press
- Labor leaders formed political parties - Philippine Revolution against Spain
- Lapiang Manggagawa/LM - Cry of Balintawak
- Consolidated Labor Party/CLP - Rizal is executed
- Philippine Labor Center/PLC brought together big unions - Battle of Manila Bay, Spain is defeated
- National Labor Unity Council/NLUC was established to organize - Phil Independence proclaimed
Labor Day celebrations. - GovGen Jaudenes said he’d surrender to Americans after
- Labor groups continued to unite with each other: PMP, little fight to save Spain’s honor
PHILCONTU, KAPP - FilAm captures Manila but Filipinos denied entry to
- Labor alliances were only shortlived. Only in mid 1970s was Intramuros
unity realized when govt formed Trade Union Congress of the - Last GovGen delos Rios leaves
Phils in 1975.
II. 1899-1901: Filipino American War/Rise and Fall of the
IX. Moralist Unionism First Philippine Republic
- Jesuits formed Institute of Social Order/ISO for education of - FilAm War robbed Filipinos of victory against Spain
labor leaders - America’s purposes: pursue manifest destiny of US as world
- Federation of Free Workers/FFW and Federation of Free power, use Phils as source of raw mats and market, use Phils as
Farmers/FFF were organized by Jesuits military/naval base, have refueling port for US ships servicing
- Other sectoral groups: interests in China
- Christian Social Movement - Developments:
- Young Christian Workers - Aguinaldo proclaims Malolos Consti
- National Union of Students in the Philippines - First Phil and Asian Republic inaugurated
- Student Catholic Action - Greyson shoots Filipino crossing San Juan bridge.
- Lakasdiwa American advance on Fil troops
- Kapulungan ng mga Sandigang Pilipino - third recorded strike launched for higher wage and
against abuses
X. Conclusion - general amnesty issued by McArthur
- Trade union tendencies: - Aguinaldo captured in Palanan, Isabela
- revolutionary – abhors capitalism; works for socialism - Aguinaldo swears allegiance to US; end of Phil Republic
- democratic-political – advances trade union freedom and - Isabelo delos Reyes, father of Phil Trade Unionism arrives
workers participation fr Spain
- economist and traditional – on factory focused/economic - American Civil Govt replaced Military Govt in pacified
issues provinces. Taft headed Philippine Commission, the
- moralist – religion gives reformist posture legislative body.
- defensive/protective – protection of workers
III. 1901-1934: American Occupation/Registration of
Unions
+COLLECTIVE BARGAINING IN THE
- Americans’ economic policy is based on capitalism
PHILIPPINES (D. EDRALIN) - Political Unionism orientation of trade union movement
CH.2 “MORE THAN A CENTURY STRUGGLE OF flourished
THE PHILIPPINE TRADE UNION MOVEMENT” - Developments
- first formal trade union, Union de Impresores de Filipinas,
I. 1750-1898: Spanish Colonial Era/Seeds of a Movement established
- Spain arrested economic development, brought exploitation - first Congress of first labor federation of the country,
- Phils as military/missionary station administered through Union Obrera Democratica/UOD held
Mexico - UOD launches first general strike
- End of isolation of country, opening to foreign goods and
liberal ideas
LAW 115: LEGAL HISTORY A2010
21
- Isabelo delos Reyes arrested; Dominador Gomez takes - labor movement is reconstituted as Committee on Labor
over and changes name of UOD to Union Obrero Organizations and later as Congress of Labor Orgs (CLO),
Democratica de Filipinas/UODF first national labor center.
- 1903: first May 1 celebration; Gomez was arrested,
Herminigildo Cruz takes over V. 1946-1952: Third Republic/Resurgence of Political
- UOD publishes first workers’ newspaper, La Redencion del Unionism
Obrero, which later, folded up - First national labor center suffers split.
- Elections for 80 seats in Phil Assembly - Developments
- Lope Santos organizes union among workers of - Phil Independence/Third Phil Republic established
Katubusan Cigar and Cigarette Factory, the first workers’ - HUKBALAHAP reorganized as People’s Liberation Army.
cooperative; he establishes Union del Trabajo de Leaders were capture, others surrendered.
Filipinas/UTF - Amado Hernandez elected CLO Pres
- Phil Assembly made May 1 or Labor Day a national - Manuel Joven, CLO national secretary, was kidnapped and
holiday killed.
- Act No 1968 established Bureau of Labor under - NACTU formed by Sec Jose Figueras.
Department of Commerce and Police - CLO split, led to form Katipunan ng mga Kaisahan ng
- Act No 1874/Philippine Employers’ Liability Act of 1908 Manggagawa/KKM
was passed, first labor law passed by Phil Assembly and Phil - FFW was organized
Commission, defining responsibility of employers for - Quirino bans CLO. Hernandez is arrested.
injuries/deaths of workers. - Min Wage Law/RA No 602 takes effect
- Bureau of Labor starts to function. - Phil United Peasant and Labor Org/PUPLO is formed as
- Congreso Obrero de Filipinas/COF organized by Cruz and rival of NACTU
Evangelista, struggling for 8hr workday
- Attorney position in Bureau of Labor created thru Act No VI. 1953-1972: Industrial Peace Act/Collective
2385 to help indigent workers Bargaining
- Act No 2486 sought to rationalize overseas recruitment - With adoption of Industrial Peace Act, collective bargaining
- BoL registers 31 unions, increased. became dominant feature of industrial relations.
- Strikes became common - Developments
- Progressive Workers Party/PWP is initiated. COF became - RA 875/Industrial Peace Act/Magna Carta of labor was
member of Pacific Secretariat of Trade Unions. enacted, reduced govt interference, promoted collective
- Evangelista elected Pres of COF bargaining, with mediation and conciliation as new modes
- COF divided into two factions. New federation, Katipunan of dispute settlement.
ng mga Anak Pawis ng Pilipinas/KAP was established from - Phils ratifies ILO Convention No 87 on right to organize
one faction. and No 98 on right to collective bargaining
- More federations with launch of Quezon’s Social Justice - Philippine Trade Union Council/PTUC is organized,
program affiliated with International Confederation of Free Trade
- The idea of establishing workers’ party is forged during Unions/ICFTU. 3 member-federations later bolted out.
congress of KAP - Employees fr govt corps establish federation. 12 unions
- Evangelista founds Partido Komunista ng Pilipinas/ PKP. joined to form Confederation of Unions in Government
Strikes became intense. Corps/CUGCO.
- Quezon tries to suppress PKP. Evangelista was arrested. - DoL undergoes revamp
- Americans raid KAP congress. - RA No 1700 or Anti Subversion Law bans PKP
- Department of Labor/DOL established by Act No 4121 - KMP was convened
- 1st attempt to engage in political action, founding
IV. 1935-1946: Commonwealth/Regulation of Industrial Convention of Lapiang Manggagawa at Lyceum
Relations - MASAKA/Malayang Samahang Magsasaka is established
- Two major devts: (1) legislative, laws were enacted for labor - PLC is established, pushed for one-union one-industry, its
protection, creation of Court of Industrial Relations and (2) split led to PMP and PHILCONTU
dynamics of trade union movement, first strike in govt owned - Magna Carta for Public School Teachers was passed
hotel and splits in labor centers - Socialist Party of Phils is founded
- Japanese invasion - School teachers wage a strike
- Developments - SMORP/Samahan ng manggagawa sa Otel at Restoran sa
- Workers’ Compensation and Minimum Wage Laws are Pilipinas was founded
passed, 1935 Consti ratified, Commonwealth Administration - ILO Area Office in Manila is formally established.
is inaugurated. Dept of Labor assumes direct supervision
over BOL. VII. 1972-1986: Martial Law Period/1973 Constitution
- Commonwealth Act 103 created Court of Industrial and 1974 Labor Code
Relations as compulsory arbitrator of labor-management - total ban on mass action
issues. - One union One Industry system
- PKP and Socialist Party merge. Three national federations - CIR replaced by NLRC
emerge: NFL(National Federation of Labor), - Development
CWA(Confederated Workers Alliance), and Collective Labor - birth of Kapulungang Anak-Pawis ng Pilipinas/KAPP
Movement (CLM) - declaration of Martial law
- Commonwealth Act No 444 or 8hr Workday Law enacted - Labor groups were convened to discuss formation of
- 1st strike in govt hotel (Manila Hotel) led to SC’s decision Philipine Labor Movement Consensus Committee/PLMCC, a
for right of govt employees to organize unions and strike. national labor center.
- Evangelista was arrested and executed by Japanese - Labor Code is enacted
- HUKBALAHAP was organized - Gen Order No 5 and PD No 823 became criticized
- surrender of Corregidor and Bataan - SMORP is reorganized NUWHRAIN/National Union of
Workers in Hotel, Restaurant and Allied Industries.
- Phil Labor Coordinating Center/PLCC is organized
LAW 115: LEGAL HISTORY A2010
22
- 1st strike under Martial law: La Tondeña - Labor Alliance for Wage Increase of P35 or LAWIN35 is
- FFW withdrew from PLCC formed
- TUCP/Trade Union Congress of Phils is established. - NCR-Wage Order No 3 increased min wage.
- Kalayaan Labor Coalition forged to support LABAN - RA 7686: Dual Training System Act signed
candidates in elections - RA 7699 instituted limited portability scheme in social
- Kilusang Mayo Uno was established security insurance systems.
- Martial law lifted; Pagkakaisa ng Manggagawang - National Confederation of Labor/NCL is launched
Pilipino/PMP born - RA 7796: Technical Education and Skills Devt Act
- BP 130 prohibited strikes in industries affecting national - RA 7877: Anti Sexual Harassment Act
interest, and required 2/3 vote before union may strike - RA 8042: Migrant Workers and Overseas Filipinos Act
- 1st general strike after martial law in Bataan Export - NCR Wage Order No 4 increased min wage
Processing Zone, forming AMBA-BALA - RA 7686: Dual Training System
- BP227 Free Ingress-Egress Law - RA 8187: Paternity Leave Act and RA 8188 imposing
- LOI 1458 gave management authority to replace workers double indemnity for violation of prescribed increases
who defy return to work order. - NCR Wage Order No 5 increased min wage
- DO No 9-97 amended Rules on Labor Relations issued by
VIII. 1986-1987: Aquino Revolutionary Government/EO Labor Sec Quisumbing
111 and EO 180 - RA 8282: Social Security Law of 1997
- Freedom Consti and Revolutionary Govt - RA 8291: Government Service Insurance System Act of
- Developments 1997
- Marcos out, Cory in. Labor Minister Sanchez convenes - DO No 10-97 on labor contracting is also issued
Labor Advisory and Consultative Council/LACC - RA 8435: Agriculture and Fisheries Modernization Act
- Proclamation No 3 promulgating 1986 Provisional Consti - AKBAYAN founding Congress held
- 1st Joint Labor Day celebration in Luneta. - NCR Wage Order No 6 increased min wage
- Memorandum Order 28 issued removing P1000 ceiling for - ILO Convention 179 (Recruitment and Placement of
those entitled to 13th month pay. Seafarers) ratified by Senate
- EO 111 restored right to unionize of employees and govt - Proclamation 1215 declaring May 1 to 7 as Linggo ng
corps, religious, medical, educ institutions, etc. Paggawa
- 1987 Consti ratified - AKBAYAN wins one seat in first party list elections, Etta
- TUCP SecGen wins Senate seat in elections Rosales sent to Congress
- EO 180: guidelines in restoring right of govt employees - RA 8425: institutionalized social reform and poverty
to unionize, creating Public Sector Labor-Management alleviation program creating National Anti-poverty
Council Commission
- ILO Convention 182 (Elimination of Worst Forms of Child
IX. 1987-present: 1987 Constitution/Restoration of Labor) ratified by Senate
Democracy, Continuing Martial Labor Laws and Neo- - NCR Wage Order No 7 increased min wage
Liberal Globalization - NCR Wage Order No 8 increased min wage
- Min wages brought about by regional wage boards created - Popoy Lagman shot dead
under RA No 6727 authored by Ernesto Herrera - 2nd party list elections, 12 groups sent 20 reps to
- RA 6715 amended Labor Code Congress
- Development: - NCR Wage Order No 9 increased min wage
- LACC and TUCP call for gen strike - DO No 18-02 by Labor Sec Sto. Tomas implementing rules
- RA 6640 granted increase in min wage on contracting and subcontracting.
- govt unions form Independent Unions in the Public - DO No 40-03 by Labor Sec Sto. Tomas amending rules
Sector/CIU implementing Book V in Labor Relations of Labor Code.
- LACC and TUCP another wage increase campaign
- RA 6657: Comprehensive Agrarian Reform Law/CARP
- RA 6715: Herrera-Veloso law amending Labor Code
- RA 6725: Act Strengthening Prohibition on Discrimination *CIVIL LAW*
Against Women on Employment
- RA 6727: Wage Rationalization Act created Regional
+CUSTOM LAW IN PRE-CONQUEST
Tripartite Wage and Productivity Boards
- founding Congress of CIU held to replace Caucus of PHILIPPINES (P. FERNANDEZ)
Independent Unions in the Public Sector CH.6 “HOUSEHOLD AND DOMESTIC
- Wage Order No 1 and 2 increased min wage. RELATIONS”
- Memo of Understanding signed as 1st national collective
negotiation agreement in public sector, granting personnel
1. Kinship in Pre-Conquest Society
emergency relief allowance/PERA.
- ILO Convention No 144 on Tripartite Consultation • Kinship was the most important determinant
(International Labor Standards) is ratified of status
- AKBAYAN is launched to support Jovito Salonga-Nene - parentage determined a person’s position,
Pimentel as Pres and VP in 1992 elections prerogatives and obligations
- RA 7277: Magna Carta for Disabled Persons • Kinship was an important Nexus of Liability
- RA 7610: Special Protection of Children Against Child - guilt for crime or tort of a member of the family
Abuse, Exploitation and Discrimination Act was imputable to the entire household
- RA 7641: Retirement Pay Law provides for retirement - imposed the obligation of vengeance; a mitigating
benefit of at least one half-month salary per year of service factor in the punishment of homicide
- DO No. 19-93 provide guidelines for employment of • Subordination of demands of kinship to the
construction workers interests of the household
- RA 7655 increased min wage for househelp - claims among relatives were enforced with the
same rigor as claims among strangers as long as
LAW 115: LEGAL HISTORY A2010
23
they belong to different households stimulated display of wealth even in life beyond the grave
by need to provide in the other world imposing policy of accumulation and
- delay of the recognition of patria potestas due to aggrandizement on household
multiple and bilateral kinship, wherein a child is
4. Marriage
related to the relatives of both mother and father
- the household, rather than the family, was the • Marriage was essentially a private affair
durable entity - minimal regulation
- governed by custom law only up to the extent that
• Bilateral kinship was of utmost importance to
marriage affected the material interest of the
the maintenance if peace and order within the
household concerned
barangay
- most households within the barangay were related - any detriment to one household would be
by blood compensated compulsory payment made by
- conflicts between households within the barangay groom was not bride-price but mere compensation
was localized and delimited, and under community for the material loss suffered by her household, as
pressures, expeditiously settled unmarried daughters were producers of articles for
• Extensions of Kinship household use or revenue
- adoption: adopted became a member of adopting • Prohibitions
household - marriage took place among persons belonging to
- blood compact: blood brother became a member different households of generally equal rank but
of dominant household, hence the barangay marriage between persons belonging to different
community classes was not prohibited
- kinship was not a barrier to marriage but incest
2. The Household in Custom Law was feared and abhorred, and whenever it
• Subject of custom law was not the individual occurred, it was rigorously punished
but the household 5. Betrothal
- household: any group of relatives, headed by a • Marriages were generally agreed upon by the
free person, living together under one roof; heads of the household, upon solicitation by the man’s
includes concubines and their children, and alipins parents
and their families, esp. the saguguilirs - betrothed were usually children
- household had a general community of earnings - customary for the household of the man to give
gained by members, under the administration of earnest money usually in the form of an advance
the head on the agreed dowry
- members have a right to their own belongings or • Betrothal was a solemn undertaking
properties - in case of breach, the party unwilling to proceed
- effective decision in the administration of the with the marriage subjected to a customary fine
household and the governance of its affairs
pertained to the head 6. Marriage Gifts
- cultural developments were shaped by household • Bridegroom’s household makes a marriage gift
and its major needs to the household of the wife
7. Offenses Against Chiefs • state pre-empts man’s natural instinct for revenge. It
-datus enjoyed preferred treatment under penal law took over the right to impose punishment for private injury
-besides killing a chief, slander, the utterance of insolent and prohibited resort to violent self-help by private
language, entering his home at night without consent, sleeping individuals
w/ his concubine, were all capital offenses
-upon a chief’s death, an interdict was enforced wherein his Sir James Fitzjames Stephen
relatives would embark on plunder and the capture/kill strangers “The criminal law bears to the instinct of revenge the same
until his spirit was avenged relation that the institution of marriage bears to the sexual
instinct. Both regularize and control a deep impulse of human
8. Theft nature that if not given legitimate expression is bound to find
-the punishment of theft in pre-conquest society proves the disruptive outlets.”
recognition of private property
-victim could kill thief in flagrante delicto • Legal system—unlike religion which offers a heavenly
-penalty was graduated according to the rank of the culprit and reward for a virtuous life, it cannot offer material reward for
the value of the stolen property each compliance; reward can only be given indirectly;
-recidivism in theft: 1st theft-a monetary fine; 2nd theft- punishment of the criminal is a reward to the law abiding;
servitude; 3rd theft-death traffic light example – motorist who stops on a red light
feels outraged at a driver ho disregards the light and
9. Insult crosses the intersection, but would feel elated when that
-insults to chiefs merited enslavement or even death motorist gets arrested
-the rationale for heavily penalizing insult was for public order
(led to violence and disorder) Legal Guides to Conduct
-insults between timaguas merited the usual fine, or slavery if • analogy: in basketball, there are rules that prohibit the
unable to pay commission of “fouls” and rules on how to “score
LAW 115: LEGAL HISTORY A2010
39
the wrongdoer also curbs his destructive impulse to inflict
• Subject of civil law – rules on how to score; provides
punishment himself
the framework or facility for creating binding legal relations;
• just as it is instinctical to seek revenge, there seems
ex. how to score = how to create a will 3 witnesses, likewise a common sense measure of what constitutes an
notarization, etc. appropriate punishment; a sense of “penalty-
• Subject of criminal law – rules prohibiting “fouls”; the appropriateness
objective of which is “to proscribe conduct which • when this sense of penalty appropriateness is violated,
unjustifiably and inexcusably causes or threatens it may result in the perpetration of what is called “revenge-
substantial harm to individual or public interests”; as well as crimes”
to “define the act or omission and the accompanying
• only time will tell whether our people’s instinct for
mental state which constitute each offense.”
revenge has sufficiently been curbed or their sense of
• Of all branches of law, the criminal law in most penalty appropriateness been sufficiently modified, to the
obviously and directly concerned with shaping and point that they no longer will take the law into their own
controlling human conduct. hands against a probationer
• New York Penal Code says: a general purpose of • the punishment theory of criminal law is justified as
criminal codes is to give fair warning of the nature of the taking the place of divine retribution and acting in place of
conduct proscribed and of the sentences authorized upon the crime victims thereby “putting under public control” the
conviction. vengeance they might otherwise seek outside the forms of
• Legal fiction that “ignorance of the law excuses no law
one” rests on the theory of representative democracy that • the other justification attributes to the criminal law the
the elected representatives of the ppl. must report to the task of keeping alive a sense of guilt
people all the statutes enacted by them
• People can make their conduct conform more readily to Preventive or Restrictive Theory
rules they actually know and not merely presumed to have • prevention or restriction; by confining the convicted
knowledge of. offender in a penal institution or restricting his liberty to a
• Laws cannot serve as guides to lawful conduct unless penal institution or restricting his liberty to a penal farm or
they operate prospectively (upon acts still to be performed); colony, he is physically removed from society and thereby
that’s why ex post facto laws and bills are constitionally prevented from committing any further offense during the
prohibited period of his sentence
• Punishment is a negative form of guiding conduct; it • strategy of crime prevention dictated by the theory
teaches only after a violation has been committed of crime causation which can be classified into 2 general
types:
• Penal Code – this however can and should offer a more 1. sociological school – holds that crime and
positive direction to guide action rather than mere delinquency are forms of behavior that are shaped
indirection by continuous social interaction and the subtle
learning process; the criminal has a social outlook
THE BASIC AIM OF CRIMINAL LAW that is formed by the social and economic class to
which he belongs
• the primordial aim of criminal law is the 2. psychological – that the offender is an emotionally
prevention and control of crime so that men may live disturbed or mentally sick person; ppl. suffering
and feel secure “in the free enjoyment and from a disease are not to be punished but should
development of their capacities for happiness” be given expert curative treatment to relieve them
• it is a basic right of men in a free society to be secure form their malady
in their persons, houses, papers and effects not only against • early intervention is justified in order to prevent the
unreasonable searches and seizures of governmental suspect from committing the crime he may likely do
authority but also against the ever real menace and threat • there are 2 flaws to this well-meaning intention:
of crime 1. behavioral science has not developed to the
• it is the purpose of criminal law to ensure the public degree that all its practitioners are agreed upon
safety by preventing the commission of offenses through what constitutes a reliable index to crime-prone
the deterrent influence of the sentences authorized. The conduct
rehabilitation of those convicted, and their confinement 2. such a theory of prevention is based on the art of
when required in the interest of public protection predicting man
• the penologic objectives are no more than instruments 3. behavior in the unknown and distant future
or the means for the attainment of societal safety and
security Predicting Crime and Preventive Detention
• ex. the “additional penalty” authorized to be imposed
PENOLOGIC OBJECTIVES upon habitual delinquents is not truly a punitive penalty but
a preventive detention to avert the commission of a
Retributive Punishment predicted offense
• the most widely known; it is a universal postulate that
revenge is a deep-seated human instinct • Vagrancy laws illustrate even more clearly the
connection between crime prediction and preventive
• even religion has instituted into the depths of the
detention
subconscious the belief that punishment is the natural
consequence of wrongdoing • The conduct engaged in by the defendant is taken by
the law as an indicator for a prediction that he is likely or is
• however, in the interest of public safety and order,
about to commit an offense, to avert which, a preventive
violent expression of such instinct must be curbed
detention is justified in the interest of public protection
• the thought that the wronged person has the legal right
• Difficulty of accurate prediction – one’s behavior or
to seek the assistance of the gov’t in his object of punishing
conduct is likewise the product of an interplay between
unique personality and ever-changing stimulus to which one
LAW 115: LEGAL HISTORY A2010
40
responds (District of Columbia’s Preventive Detention Act – • “law is concerned not with private morals or ethical
violates presumption of innocence) sanctions but with the outward conduct of citizens in so far
as that conduct injuriously affects the rights of other
Rehabilitaqtive, Reformative Theory citizens
• In its extreme form, the preventive object of criminal
law would want to see the elimination of crime by the
extirpation of the physically, mentally and morally unfit; or
by their complete segregation in a socially aseptic
environment
Conclusion
• The reformative theory however, seeks to modify and • the foregoing survey of what the criminal law seeks to
even reverse this brutal object accomplish should serve to show that the subject of crime
• Through various sentencing alternatives and prevention and control is not as simple as at first blush
procedures, it aims to uplift and redeem valuable human would seem to appear
material and prevent unnecessary and excessive
deprivation of liberty and economic usefulness
• the discussion also points out the dangers that arise
when a legal system places too heavy a reliance on any
• Focuses mainly upon the crime itself; concern is to single one of the penologic object
predetermine the proper relation between the gravity of an
• Retributive punishment – concentrates too strongly on
offense and the corresponding penalty in order to satisfy
the victim’s desire for revenge and becomes its brutal
the victim’s desire for revenge and his sense of penalty
instrument
appropriateness; and to deter others from committing
similar offense • Rehabilitative ideal- on the other extreme, is so
concerned with the offender’s interest that it would
Difficulty if not impossibility of eradicating crime supplant the concept of punishment to which the roots of
• Another view of crime aside from the psychological
criminal always could be traced
view that regards criminal act as a manifestation of • In between, the objects of prevention and deterrence
psychopathology this view regards crime as the are so intensely between towards protecting the public
expression of his “natural and unbridled instinctual drives” interest that such effort may result in a vast overreaching of
• Crime is merely a penalized defiance from man-made otherwise harmless eccentrics and innocent persons
societal rules
• Aristotle: formulated the doctrine of the “Golden Mean”
• From this view, tendency to crime or defiance from
as an answer to a vexing dilemma the advice is to follow
rules is the natural while conformity is artificial.
of conduct in accordance with the “virtues of moderation”
Deterrence • Where the actual pointer must rest however varies
each man and must be determined from actual experience
• The aim of penal law could not be stated in more plain
language than the word “deterrence” to deter, restrain, +CRIME, SOCIETY IN THE NINETEENTH
and inhibit the commission of crimes through fear of
punishment CENTURY (G. BANKOFF)
CH.6 “PUNISHMENT”
• The general object is to deter all crimes
• Types of Deterrence The concept of punishment in Western societies changed during
1. general deterrence – “exemplarity”; restraint of all the 19th century. The Biblical emphasis on physical retribution
potential offenders in the general population; seeks to gave way to one based more on social expiation and
accomplish its object solely through terror and the reformation of character. Prisons, which had been holding
supposed consequent desire to avoid the punishment places for those awaiting trial, became the foundation of the
of which persons are terrified penal system. Capital and corporal punishment remained
2. specific deterrence - deterrence of the individual judicial options, but the sentence of the court increasingly
convict/parolee/probater/released inmate from involved incarceration in a purposely built institution.
repeating his criminal act; Punishment became more institutionalized in the Philippines as
• Assumptions well. Courts increasingly favored imprisonment as a primary
a. Free will corrective expedient for most offenses, though deportation,
b. Awareness of criminal sanctions force labor and execution remained options. The introduction of
c. Fear and avoidance of punishment the Penal Code in July 1887 deprived judges of their discretion in
• Factors Affecting Deterrent Efficacy determining the nature of an offense and the severity of its
1. celerity punishment. Crimes were classified according to their gravity,
2. severity and penalties were standardized.
3. certainty of punishment
Imprisonment
The Problem of Criminalization
• Criminalization – the legislative process of choosing Most persons convicted in the Philippines during the 19th were
what acts are to be prohibited, making legal definitions of sentenced to a prison term that varied according to the
them and determining what punishment shall be prescribed enormity of the crime. Imprisonment consisted the principal
for their violation punishment imposed by the courts between 1840-1885, and
• The ultimate aim of criminal law is to protect society such sentence increased steadily until it comprised 99% of all
and provide the public with security to life, liberty and convictions. Imprisonment peaked during the revolutionary
property period, when 4,000 prisoners were incarcerated in manila alone,
following the mass arrest of the Katipuneros in 1896.
• Any conduct that threatens this security of a fair
subject for criminalization
LAW 115: LEGAL HISTORY A2010
41
Imprisonment became so prominent a penal option during the appointment of wardens fell within the patronage of the
19th century that colonial courts evolved an extensive provincial magistrates. Though Spain managed to establish a
nomenclature for such sentences. There were at least seven colonial prison system, it failed to provide the funding to make it
legal term denoting imprisonment : presidio, cadena, reclusion, effective. Many officials were aware of the system’s deficiencies,
relegacion, carcel, prison and arresto. but reforms remained mostly on paper. Determined men, often
with confederates and relatives on the outside, easily escaped
The Prison System from establishments, negating the entire concept of
incarceration in the Philippines.
Only a rudimentary prison system existed for most of the 19 th
century. Each poblacion was required to maintain a jail either Internal Organization
within a casa tribunal or in a separate building adjacent to it.
Only suspects awaiting the outcome of criminal investigation or Inside the prison, society was organized along strictly military
prisoners serving minor sentences were confined here. Most lines with a delineated hierarchy that encompassed everyone
municipal jails, however, usually comprised nothing more than a from the most recalcitrant inmate to the prison commandant.
nipa and palm structure with wooden bars over the window and The policy was to purposely create degrees of social
a secured doorway. Those sentenced to longer terms were sent differentiation based on behavior. Prisoners were divided into
to larger prisons located in every provincial and district capital.. esquadas (squads of between 20 and 40 men) to facilitate their
Initially only prisoners serving sentences between one month security. These squads were later grouped into a number of
and two years were confined in these jails. However, the brigades according to the seriousness of offenses.
introduction of the Penal Code in1887 extended the upper limit Prisoners were given a number on arrival and assigned to a
to six years, and further strained the limited facilities of the brigade. Both these identifications were clearly stamped on
provincial penal system. prisoner’s clothes, salacot and chains. A squad was placed
under the surveillance of a prison trustee, who was responsible
Prisoners convicted of serious crimes were sent to Manila. The for the security and behavior of the convicts under him. The
ayuntamiento de Manila maintained a municipal jail for minor trustee (a.k.a. cabo de vara) ensured that internal prison
offenses, but more hardened criminals were housed in secure regulations were complied with - that prisoner neither gambles,
premises ( Fort Santiago & Church of San Agustin in Intramuros). drank alcohol, nor sold their clothes nor rations. He also
Because of the need for a more secure structure, the Bilibid maintained the conduct of his squad while working outside the
was Commissioned in 1866 and three other provincial prisons prison perimeters, took roll-call at the conclusion of such work,
became major penitentiaries during the second half of the 19th prevented disorders, and assisted the recapture of any
century – Cavite, Zamboanga & Marianas Islands. escapees.
The onus of prison security fell on an official known as the
While the structure of a comprehensive prison system existed in capataz (foreman). The capataces were responsible for the day-
paper, the state of many of the buildings hampered its to-day running of a prison. One such official was in charge of the
operations in rural areas. Outside the main penitentiaries, prison gates and what passed through them. Another exercised
prison buildings were in such disrepair that they provided control over security and labor performed outside the prison
neither security of confinement nor adequate sanitary perimeter, while still another had similar internal duties. A
conditions. The problem was fiscal. The state’s chronic shortage capataz was placed in command of each brigade comprising a
of money as outlay exceeded revenue left little expenditure for total of between 120 and 160 men divided into three to eight
capital works after payment of salaries. The decision to make squads. He apportioned their tasks, kept a check on their
municipal authorities responsible for constructing town jails only numbers, reported on their conduct, looked after their health,
succeeded in localizing the difficulty, but did nothing to solve ensured the cleanliness of their surroundings, and acted as
the lack of funding. intermediary between the prisoners in his charge and higher
The financial problem was only exacerbated by the neglect of authority.
other aspects of the penal system. There was a lack of
administrative structure, uniform regulation and professional Authority in provincial prisons rested with the alcaide, who,
staff. Until the reforms of the late 19th century, the management aided by an assistant warden in the larger establishments,
of the provincial prisons was the sole responsibility of the exercised immediate control over a prison according to the
alcalde mayor, who drafted their internal regulations, appointed responsibilities delegated to him. While in charge of everyday
the personnel and determined their duties. Prisons were largely running of a prison, the alcaide was initially subject to the orders
left to the devices of a warden, who ran the place much as he of the provincial governor to whom he had to report daily. He
pleased subject only to the authority of the alcalde mayor. Only was prohibited from imposing punishment on a prisoner and had
in 1883 were provincial prisons fully incorporated into a to refer all such matters to the alcalde mayor.
comprehensive administrative structure, and made subject to
newly created provincial and district prison boards. Members of The duties of the alcaide were divided into a number of positions
these boards were entrusted with most of the duties previously in the main penitentiaries 1. capataz furriel – in charge of the
performed by the alcalde mayor and with carrying out daily prison’s kitchen and stores, supervising food purchases, hygiene
inspections to ensure compliance with prison regulations. and provision of furnishings 2. adjutant – security of the prison,
No attempt was made to impose a uniform set of regulations on maintenance of order and discipline, thwarting escape attempts
prisons until 1863. Provincial and municipal prisons were largely 3. commandant - the prison’s overall administrator and
governed by the legal provisions on the arrest and treatment of implementor of legal requirements and penal regulations; only
prisoners. Without adequate safeguards, such provisions were he had the authority to order a prisoner punished and was
often ignored, sometimes abused, and always subject to entrusted with certain quasi judicial powers to conduct criminal
interpretation by a warden. Prison boards often found investigations of preliminary nature and to impose sentence in
themselves converted into little more than useless clubs, neither case of misdemeanor.
exercising the right of inspection nor taking part in their
administration.
Military Order Number 58, dated April 23, 1900 It was the intention of the US President in the
provides an equal right to the Government to appeal from a instructions to the Philippine Commission to adopt a well
judgment of acquittal. known part of the fundamental law of the United States,
and to give much of the beneficent protection of the bill of
This order was amended by an act of the Commission rights to the people of the Philippine Islands. When
(No. 194), passed August 10, 1901, which gave the Court Congress came to pass the act of July 1, 1902, it enacted,
discretion to give the Government the right to appeal. almost in the language, of the President's instructions, the
Bill of Rights of the US Constitution. In view of the
On July 1, 1902, Congress passed an act, 32 Stat., 691: expressed declaration of the President, followed by the
"An Act temporarily to provide for the administration of the action of Congress, both adopting, with little alteration, the
affairs of civil government in the Philippine Islands, and for provisions of the Bill of Rights, there would seem to be no
other purposes. This time, it provides: room for argument that in this form it was intended to carry
to the Philippine Islands those principles of our Government
"That no person shall be held to answer for a criminal which the President declared to be established as rules of
offense without due process of law; and no person for law for the maintenance of individual freedom, at the same
the same offense shall be twice put in jeopardy or time expressing regret that the inhabitants of the Islands
punishment, nor shall be compelled in any criminal had not theretofore enjoyed their benefit.
case to be a witness against himself.
It is not necessary to determine in this case whether
The Act just quoted became a law before the final the jeopardy provision in the Bill of Rights would have
conviction of the accused in the Supreme Court of the become part of the law of the Islands without Congressional
Islands. It is contended by the Government that that part of legislation. The power of Congress to make rules and
the law under immediate consideration, which provides that regulations for territory incorporated in or owned by the
no person, for the same offense, shall be twice put in United States is settled by an unbroken line of decisions of
jeopardy, must be construed in view of the system of laws this court and is no longer open to question. (American Ins.
prevailing in the Islands before the same were ceded to the Co. vs. Canter, 1 Pet., 511; Murphy vs. Ramsey, 114 U. S.,
United States, and that the purpose of Congress was to 15; Mormon Church vs. United States, 136 U. S., 1, 42, 43;
make effectual the jurisprudence of the Islands as known Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi,
and established before American occupation, and that the 190 U. S., 197.) This case does not call for a discussion of
provision against double jeopardy must be read in the light the limitations of such power, nor require determination of
of the understanding of that expression in the civil law, or the question whether the jeopardy clause became the law
rather the Spanish law as it was then in force. of the Islands after the ratification of the treaty without
Congressional action, as the act of Congress made it the
In Spanish law the doctrine against double jeopardy (in law of these possessions when the accused was tried and
the sense of being tried separately of the same offense in convicted.
another court) found expression in the Fuero Real (A. D.
1.255) and the Siete Partidas (A. D. 1263). The argument is of the Philippine Government in this
case that Congress intended to leave the right of
In the encyclopedia of Spanish law, published by Don appeal as provided by Military Order, No. 58, as
Lorenzo Arrazola in 1848, it is said, in considering the amended by the Commission, in full force. But
persons who may be accused of crime: Congress, in section 5, had already specifically provided
that no person should be put twice in jeopardy of
"It is another of the general exceptions that a person punishment for the same offense. While section 9
can not be accused who has formerly been accused recognizes the established jurisdiction of the courts of the
and adjudged of the same crime, since. the most Islands, it was not intended to repeal the specific guaranty
essential effect of all judicial decisions upon which of section 5, which is direct legislation pertaining to the
execution can issue is to constitute unalterable law. particular subject. It is a well-settled principle of
(Tomo 1, pag. 511.)" construction that specific terms covering the given subject
matter will prevail over general language of the same or
UNDER THAT SYSTEM OF LAW IT SEEMS THAT A another statute which might otherwise prove controlling. (In
PERSON WAS NOT REGARDED AS BEING IN JEOPARDY IN re Rouse, Hazard & Co., 91 Fed, Rep., 96, 100, and cases
THE LEGAL SENSE UNTIL THERE HAD BEEN A FINAL therein cited; Townsend vs. Little, 109 U. S., 504, 512.)
JUDGMENT IN THE COURT OF LAST RESORT. The lower
courts were deemed examining courts, having preliminary In ascertaining the meaning of the anti-double jeopardy
jurisdiction, and the accused was not finally convicted or clause taken from the Bill of Rights it must be, construed
acquitted until the case had been passed upon in the with reference to the common law from which it was taken.
audiencia, or Supreme Court, whose judgment was subject I Kent, Com., 336; United States vs.Wong Kim Ark, 169 U.
to review in the Supreme Court at Madrid for errors of law, S., 649, in which this court said:
with power to grant a new trial. The trial was regarded as
one continuous proceeding, and the protection given was "In this, as in other respects, it [a constitutional
against a second conviction after this final trial had been provision] must be interpreted in the light of the
concluded in due form of law. The change introduced under common law, the principles and history of which were
Military Order, No. 58, as amended by Act 194 of the familiarly known to the framers of the Constitution.
Commission, made the judgment of the Court of First (Minor vs. Happersett, 21 wall., 162; Ex parte Wilson,
Instance final, in cases other than capital, whether the 144 U. S., 417, 422; Boyd vs. United States, 116 U. S.,
accused be convicted or acquitted, unless an appeal was 616, 624, 625; Smith vs. Alabama, 6241 U. S., 465.)
The language of the Constitution, as has been well said,
LAW 115: LEGAL HISTORY A2010
47
could not be understood without reference to the CONTINUING JEOPARDY FROM ITS BEGINNING TO THE END
common law. (I Kent's Com., 336; Bradley, J., in Moore OF THE CAUSE.
vs. United States, 91 U. S., 270, 274.)."
If a statute should give the right to take exceptions to
At the common law, protection front second jeopardy the Government, I believe it would be impossible to
for the same offense clearly included immunity from second maintain that the prisoner would be protected by the
prosecution where the, court having jurisdiction had Constitution from being tried again. He no more would be
acquitted the accused of the offense. The rule. is thus put in jeopardy a second time when retried because of a
stated by Hawkins in his pleas of the Crown, quoted by Mr. mistake of law in his favor, than he would be when retried
Justice Story in United States vs. Gibert et al. (2 Sumner, 19, for a mistake that did him harm. It can not matter that the
39) : prisoner procures the second trial.
"The plea (says be) of autrefois acquit is grounded on
this maxim, that a man shall not be brought into It might be said that when the prisoner takes
danger of his life for one and the same offense more exceptions he only is trying to get rid of a jeopardy that
than once. From whence it is generally taken by all our already exists-that so far as the verdict is in his favor, as
books, as an undoubted consequence, that where a when he is found guilty of manslaughter upon an indictment
man is once found not guilty, on an indictment or for murder, according to some decisions he will keep it and
appeal, free from error, and well commenced before can be retried only for the less offense, so that the jeopardy
any court, which hath juris diction of the cause, he may only is continued to the extent that it already has been
by the common law, in all cases, plead such acquittal in determined against him, and is continued with a chance of
bar of any subsequent indictment or appeal for the escape. I believe the decisions referred to to be wrong, but
same crime." assuming them to be right, we must consider his position at
the moment when his exceptions are sustained. The first
In this court it was said by Mr. Justice Miller, in Ex parte Lange verdict has been set aside. The jeopardy created by that is
(18 Wall., 163) : at an end, and the question is what shall be done with the
prisoner., Since at that moment he no longer is in jeopardy
"The common law not only prohibited a second from the first verdict, if a second trial in the same case is a
punishment for the same offense, but went further and second jeopardy even as to the less offense, he has a right
forbid a second trial for the same offense, whether the to go free. In view of these difficulties it has been argued
accused had suffered punishment or not, and whether that on principle he has that right if a mistake of law is
in the former trial he had been acquitted or convicted." committed at the first trial. (1 Bish. Crim. Law 5th ed.),
secs. 999 1047.) But even Mr. Bishop admits that the
In US constitutional history therefore it was clear that right decisions are otherwise, and the point is settled in this court
against double jeopardy includes the forfeiture of the right of by the cases cited above. That fetish happily being
the State to appeal a judgment of acquittal by a lower court. destroyed, the necessary alternative is that the Constitution
permits a second trial in the same case. The reason,
POINT OF THE ENTIRE DISCUSSION: Military Order No. 58, as however, is not the fiction that a man is not in jeopardy in
amended by act of the Philippine Commission, No. 194, in so far case of a misdirection, for it must be admitted that he is in
as it undertakes to permit an appeal by the Government after jeopardy, even when the error is patent on the face of the
acquittal, was repealed by the act of Congress of July, 1902, record, as when he is tried on a defective indictment, if
providing immunity front second jeopardy for the same criminal judgment is not arrested. (United States vs. Ball, 163 U. S.,
offense. This conclusion renders it unnecessary to consider, if 662.) Moreover, if the fiction were true, it would be equally
the question was presented in this case, whether the accused true when the misdirection was in favor of the prisoner. The
was entitled to the right of a trial by jury. Judgment reversed reason, I submit, is that there can be but one jeopardy in
and prisoner discharged. one case. I have seen no other, except the suggestion of
waiver, and that I think can not stand.
Mr. JUSTICE HOLMES, with whom concurred Mr. JUSTICE
WHITE and Mr. JUSTICE McKENNA, dissenting: Mr. JUSTICE BROWN, dissenting:
I regret that I am unable to agree with the decision of Under our Anglo-Saxon system of jurisprudence, I have
the majority of the court. The case is of great importance, always supposed that a verdict of acquittal upon a valid
not only in its immediate bearing upon the administration of indictment terminated the jeopardy, that no further
justice in the Philippines, but, since the words used in the proceedings for a review could be taken either in the same
act of Congress are also in the Constitution, even more or in an appellate court, and that it was extremely doubtful
because the decision necessarily will carry with it an whether even Congress could constitutionally authorize
interpretation of the latter instrument. If, as is possible, the such review.
constitutional prohibition should be extended to
misdemeanors (Ex parte Lange, 18 Wall., 163, 173), we Conceding all this, however, I think that in applying the
shall have fastened upon the country a document covering principle to the Philippine Islands, Congress intended to use
the whole criminal law, which, it seems to me, will have the words in the sense in which they had theretofore been
serious and evil consequences. At the present time in this understood in those Islands. By that law, in which trial by
country THERE IS MORE DANGER THAT CRIMINALS WILL jury was unknown, the Jeopardy did not terminate if appeal
ESCAPE JUSTICE THAN THAT THEY WILL BE SUBJECTED TO were taken to the audiencia Or Supreme Court, until that
TYRANNY. But I do not stop to consider or to state the body bad acted upon the case. The proceedings before the
consequences in detail, as such considerations are not Court of First Instance were in all important cases
supposed to be entertained by judges, except as inclining reviewable by the Supreme Court upon appeal, which acted
them to one of two interpretations, or as a tacit last resort finally upon the case and terminated the jeopardy. This was
in case of doubt. It is more pertinent to observe that it evidently the view of the military commander in General
seems to me that logically and rationally a man can not be Orders, No. 58, and of the Philippine Commission in the Act
said to be more than once in jeopardy in the same cause, of August 10, 1901 (No. 194), in both of which an appeal to
however often he may be tried. THE JEOPARDY IS ONE the Supreme Court was contemplated, even after a
LAW 115: LEGAL HISTORY A2010
48
judgment Of acquittal. I think this also must have been the such quorum, and the concurrence of four shall suffice for the
intention of Congress, Particularly in view of sec. 9 of the pronouncement of the judgment. In all other case the
Philippine Act of July 1, 1902, which provided that "the presence of four judges shall be sufficient o form a quorum,
Supreme Court and the Courts of First Instance of the and the concurrence of three judges for the pronouncement
Philippine Islands shall possess and exercise jurisdiction as of a judgment.
heretofore provided * * * subject to the power of said In the absence of a quorum the court shall stand ipso facto
Government to change the practice and method of adjourned until such time as the requisite number shall be
procedure." It seems to me impossible to suppose that present, and a memorandum showing this fact shall be
Congress intended to place in the hands of a single judge inserted by the clerk in the minutes of the court.
the great and dangerous power of finally acquitting the - Legislation concerning the Supreme Court:
most notorious criminals. • Cooper Law, Act of Congress of Feb. 6, 1965 grants original
and exclusive jurisdiction to the Supreme Court in all
+US V LIMSIONGCO actions brought by the Phil Government involving the
construction of section 4 of the law and provides how
MALCOLM; October 9 1920 vacancies shall be filled temporarily
• Congressional Joint Resolution of April 9, 1910 authorizes
FACTS the Supreme Court to hold terms of court in Baguio
- September 21, 1919 – Game of monte was being played in the
house of Limsiongco situated in Tibiao, Antique • Organic Act for the Philippine Islands, Act of Congress of
Aug, 26, 1916
- Pavia was the banker of the game and there were nine other
players • Sec. 26 provides that:
- Game was being observed by a secret service agent and upon • the chief justice and the associate justices
report to the sergeant of the Constabulary, a raid was shall be appointed by the President
conducted with the aid of the municipal police • the admirality of the Supreme Court shall
- The abovementioned individuals were arrested and the not be changed except by Act of
paraphernalia and money were seized Congressional
- The ten defendants were charged with a violation of the • the Supreme Court and CFIs shall possess
Gambling Law and each of them was found guilty and exercise jurisdiction
- Limsiongco, as the owner of the gambling house, was
sentenced to one month and 15 days in prison
• Sec. 29 provides for the salaries of the Chief
Justice and the Associate Justices
- Pavia, as the banker, was sentenced to one month and 10 days
- History of the Supreme Court
in prison
- The others were sentenced to one month imprisonment with a • Previously existed under the Spanish administration as the
1/10 part of the costs against each defendant Audiencia Territorial manila
- Defendants question the very structure of the court itself, • Reestablished by GO # 20 of the Military Government on
assailing that the decision was rendered by a division of the may 29, 1899.
court and not the body itself • 1901 – Act # 36 was an act providing for the organization of
- That division of the court had no power, authority or courts in the Philippine islands including the Supreme Court
jurisdiction to render a final decision in the controversy • Judiciary Law found in Administrative Codes of 1916 and
1917 collated all previous provisions and modifications and
included, among others, the sessions for the court in banc
and in divisions.
ISSUE - The Philippine legislature has been organized with very little
WON a division of the court has the power, authority or intervention from the US Congress
jurisdiction to render final decisions regarding cases - Sec. 26 of the Organic Act – has been construed by courts to
mean that the Philippine Legislature can add to, but cannot
N.B. In answering the issue, it is essential to resolve WON diminish, the jurisdiction of the Supreme Court and the CFI with
Section 138 of the Administrative Code is unconstitutional jurisdiction defined as the authority of the court to hear and
determine a cause.
HELD - Sec. 138 of the Administrative Code does not diminish the
Yes authority of the Court to hear and determine causes when
Reasoning The Administrative Code was the handiwork of the sitting in divisions.
Philippine Legislature
• The Supreme Court remains a unit despite the divisions. It
Sec. 138 of the Administrative Code of 1917 states:
is still a single court.
Sessions of court in banc and in divisions. — The Supreme
Court shall, as a body, sit in banc, but it may sit in divisions to • Actions rendered by the divisions are still done by a single
transact business for which four judges constitute a quorum, tribunal. These divisions are not separate and distinct
and two divisions may sit at the same time. If the Chief Justice courts.
is present, whether in banc or division, he shall preside. In his - US v. Canent
absence, that one of the judges attending in banc or in the • Appellant contends that providing for the assignment by the
division shall reside who holds the senior commission. respective judge of the district to the justice of the peace in
Six of the judges of the Supreme Court, lawfully convened, provincial capitals of certain specified cases originally
shall be necessary to form a quorum for the transaction of cognizable by CFI was unconstitutional and diminished the
any business involving the admiralty jurisdiction of the court, jurisdiction of the CFI
or for the final disposition of a civil case in which the amount • Court held that this was not so.
in controversy exceeds ten thousand pesos or a criminal case • The CFI shares the powers and the district
in which the judgment of the lower court imposed death, or judge may act in the stead of the CFI judge. It
imprisonment for more than ten years, or a fine of more than relieves the CFI of the duty of attending to so
ten thousand pesos, and the concurrence of five judges, shall many cases so that his attention is now
be necessary for the pronouncement of a judgment, but when focused on more important cases
there is a vacancy in said court five judges shall constitute
LAW 115: LEGAL HISTORY A2010
49
+PEOPLE V ECHEGARAY death penalty is a cruel, unjust, excessive or unusual
punishment in violation of the constitutional proscription
PER CURIAM; June 25, 1996
against cruel and unusual punishments. The Court
unchangingly answered this question in the negative in the
FACTS
cases of Harden v. Director of Prison, People v. Limaco,
- On June 25, 1996, we rendered our decision in the instant case
People v. Camano, People v. Puda11 and People v. Marcos.
affirming the conviction of the accused-appellant for the crime
of raping his ten-year old daughter. The crime having been
committed sometime in April. 1994. during which time Republic Consequently, we have time and again emphasized
Act (R.A.) No. 7659. commonly known as the Death Penalty Law, that our courts are not the fora for a protracted debate on
was already in effect. accused-appellant was inevitably meted the morality or propriety of the death sentence where the
out the supreme penalty of death. law itself provides therefor in specific and well-defined
- On August 6, 1996, accused-appellant discharged the defense criminal acts.
counsel, Atty. Julian R. Vitug, and retained the services of the
AntiDeath Penalty, Task Force of the Free Legal Assistance The list of capital offenses lengthened as the
Group of the Philippines (FLAG). Now, accused-appellant comes legislature responded to the emergencies of the times. In
to us in the heels of this court's affirmation of his death 1941, Commonwealth Act (C. A.) No. 616 added espionage
sentence and raises for the first time the issue of the to the list. In the 1950s, at the height of the Huk rebellion,
constitutionality of R.A. 7659. His thesis is two-fold: the government enacted Republic Act (R.A.) No. 1700,
otherwise known as the Anti-Subversion Law, which carried
ISSUE the death penalty for leaders of the rebellion. From 1971 to
(1) WON the death penalty law is unconstitutional per se for 1972, more capital offenses were created by more laws,
having been enacted in the absence of compelling reasons among them, the Anti-Hijacking Law, the Dangerous Drugs
therefor; and Act, and the Anti-Carnapping Law. During martial law,
(2) WON the death penalty for rape is a cruel, excessive and Presidential Decree (P.D.) No. 1866 was enacted penalizing
inhuman punishment in violation of the constitutional with death, among others, crimes involving homicide
proscription against punishment of such nature. committed with an unlicensed firearm.
On February 15, 1993, after a fierce and fiery exchange Rep Sanchez, one of the sponsors defined: A HEINOUS
of arguments for and against capital punishment, the CRIME IS ONE WHICH, BY REASON OF ITS INHERENT OR
Members of the Senate voted on the policy issue of death MANIFEST WICKEDNESS, VICIOUSNESS, ATROCITY OR
penalty. The Chair explained that it was agreed upon that PERVERSITY, IS REPUGNANT AND OUTRAGEOUS TO THE
the Body would first decide the question whether or not COMMON STANDARDS OF DECENCY AND MORALITY IN A
death penalty should be reimposed, and thereafter, a JUST AND CIVILIZED SOCIETY.
seven-man committee would be formed to draft the
compromise bill in accordance with the result of the voting.
On February 23, 1993, after explaining their votes, the
If the Body decides in favor of the death penalty, the Chair
Members of the House of Representatives cast their vote on
said that the committee would specify the crimes on which
House Bill No. 62 when it was up for consideration on third
death penalty would be imposed. It affirmed that a vote of
reading. The results were 123 votes in favor, 26 votes
Yes in the nominal voting would mean a vote in favor of
against, and 2 abstentions.
death penalty on at least one crime, and that certain
refinements on how the penalty would be imposed would be
left to the discretion of the seven-man committee. After the approval on third reading of House Bill No. 62
on February 23, 1993 and of Senate Bill No. 891 on August
16, 1993, the Bicameral Conference Committee convened
With seventeen (17) affirmative votes and seven (7)
to incorporate and consolidate them.
negative votes and no abstention, the Chair declared that
the Senate has voted to reincorporate death as a penalty in
the scale of penalties as provided in the Revised Penal On December 31, 1993, Republic Act (R.A.) No. 7659,
Code. A nine-person committee was subsequently created entitled, "An Act to Impose the Death Penalty on Certain
to draft the compromise bill pursuant to said vote. The Heinous Crimes, Amending for that Purpose the Revised
mandate of the committee was to retain the death penalty, Penal Code, as Amended, Other Special Penal Laws, and for
while the main debate in the committee would be the Other Purposes," took effect.39
determination of the crimes to be considered heinous.
Between December 31, 1993, when R.A. No. 7659 took
After the protracted debate, the Members of the Senate effect, and the present time, criminal offenders have been
voted on Senate Bill No. 891 on third reading. With prosecuted under said law, and one of them. Herein
seventeen (17) affirmative votes, four (4) negative votes, accused-appellant, has been, pursuant to said law, meted
and one abstention, the death penalty bill was approved on out the supreme penalty of death for raping his ten-year old
third reading on August 16, 1993. daughter. Upon his conviction, his case was elevated to us
on automatic review. On June 25, 1996, we affirmed his
LEGISLATIVE HISTORY: HOUSE VERSION conviction and the death sentence.
• There are no recorded or documented cases of • Republic Act No. 8177 mandates that a death sentence
executions through the death penalty during this shall be carried out through lethal injection.
period simply because extrajudicial executions were President Joseph Ejercito Estrada (1998-2001)
widely practised as part of the pacification of the • Leo Echegaray was executed in February 1999 and was
country. followed by six other executions for various heinous
Post-World War II crimes.
• Espionage is added to the list of capital offenses. • In 1999, the bumper year for executions, the national
• The Anti-Subversion Law called for the death penalty crime volume, instead of abating, ironically increased
for all Communist leaders. However, no executions by 15.3 percent or a total of 82,538 (from 71,527
were recorded for any captured communist leader. crimes in the previous year).
• For the period of 1946-1965, 35 people were executed • Estrada issued a de facto moratorium on executions in
for offenses that the Supreme Court labeled as “crimes the face of church-led campaigns to abolish the death
of senseless depravity or extreme criminal perversity.” penalty and in observance of the Jubilee Year.
The Marcos Years (1965-1986) President Gloria Macapagal Arroyo (2001-present)
• “Deterrence” became the official justification for the • Arroyo publicly stated that she is not in favor of
imposition of the death penalty. This is the same executions.
justification used for the declaration of Martial Law in • Due to the rise in crimes related to drugs and
1972. kidnappings that targeted the Filipino-Chinese
• The number of capital crimes increased to a total of 24. community, she announced that she would resume
Some crimes which were made punishable by death executions “to sow fear into the hearts of criminals.”
through laws and decrees during the Marcos period • Arroyo lifted the de facto moratorium issued by Estrada
were subversion, possession of firearms, arson, on December 5, 2003.
hijacking, embezzlement, drug-related offenses,
unlawful possession of firearms, illegal fishing and • Even as executions were set to resume on January
cattle rustling. 2004, this did not push through by virtue of a Supreme
Court decision to reopen the Lara-Licayan case.
• Jaime Jose, Basilio Pineda, and Edgardo Aquino were
executed for the gang rape of movie star Maggie dela • Since then, the administration has been issuing
Riva in 1972. Despite prohibitions against public reprieves on scheduled executions without actually
executions, the execution of the three was done in full issuing a moratorium.
view of the public. • With the amendment of Republic Act No. 8353 (Anti-
• Nineteen executions took place during the Pre-Martial Rape Law of 1997) and Republic Act No. 9165
Law period. Twelve were executed during Martial Law. (Comprehensive Dangerous Drugs act of 2002), there
are now 52 capital offenses, 30 of which are death
• Senator Benigno Aquino, Jr. was sentenced to die by mandatory and 22 are death eligible.
firing squad for charges of murder, subversion and
illegal possession of firearm in 1977.
• The last judicial execution under the Marcos years was LECTURE NOTES
in October 1976 when Marcelo San Jose was executed
by electrocution. June 21, 2006
I. Scope of the Course
• Similar to the reasons for the imposition of capital
* Overview of World Legal System
punishment during the Colonial Periods, the death
* Development of Philippine Laws and Legal Institution
penalty during the Marcos Regime was imposed to
Focus among three (3):
quell rebellion and social unrest.
a. it gives background on legal system as a whole
President Corazon Cojuangco Aquino (1986-1992)
b. it also provides sufficient information (academic or
• The Death Penalty was “abolished” under the 1987 practical) to form the foundation of one’s study of the
Constitution. other fields of law
• The Philippines became the first Asian country to c. relevance of legal history not only in academic study
abolish the death penalty for all crimes. but also in practice
• All death sentences were reduced to reclusion
II. The Philippine Legal System
perpetua or life imprisonment.
A. Legal Traditions
• In 1988, the military started lobbying for the imposition * What influences have impacted..?
of the death penalty for crimes committed by the CPP- a. Custom law or Malay influence
NPA. b. Spanich Civil Law influence (based on Roman Civil Law)
President Fidel Valdez Ramos (1993-1998) c. Anglo-American Common Law
• A series of high profile crimes during this period, d. Muslim Law / Non-muslim Indigenous Law
including the murder of Eileen Sarmenta and Allan
Gomez, created public impression that heinous crimes • Our legal system is unique and plural as compared to
were on the rise. world legal systems
• The Ramos administration reimposed the death penalty • It is plural because: (1) of traces of influences (2)
by virtue of Republic Act No. 7659 in December 1993 to affected by different traditions, and (3) in the Phils., all
address the rising criminality and incidence of heinous these traditions work independently of the other
crimes. • He present legal system regulates or controls everyday
conduct
• The Death Penalty Law lists a total of 46 crimes
punishable by death; 25 of these are death mandatory
B. Sources of Law / Legal System
while 21 are death eligible.
LAW 115: LEGAL HISTORY A2010
57
“Source of law” ~ means mean authoritative sources which are * All political laws were abrogated during the transfer of Phils
binding as law from Spain to Americans through the Treaty of Paris; however,
2 Principal Sources: civil laws remained
a.] Statutes / Constitution, enactments of will of legislature, * Commerce and Trade: given emphasis in the making of laws
issuances through the 2 commissions sent to study the situation in the
Phils.
5 forms of legislative enactments: * Freedom of speech and freedom of expression was observed,
* Acts (1901) but before that strict laws to establish authority
* Commonwealth Acts (1935 * In all these we can underline the power and force of laws and
* Republic Acts (1946) (1987 – ) legislation
* Presidential Decrees (1972, 73 – ) * One legacy of the Americans in the Phils is the court / judicial
* Batas Pambansa Issuances system or the hierarchy of the courts with the SC as the
highest
Q: Which bodies, in the course of history, enacted these * Legislation done by the Executive
different legislative enactments? D. Commonwealth Period
As of 2005, there is a total of 9885 R.A.s enacted * Most of the legal ideas and laws were maintained
2500~ PDs were passed by Marcos alone
F. Japanese Occupation (1943 Constitution)
b.] Jurisprudence / Case law – decisions and resolutions only of
SC G. Philippine Republic
* Resumption of 1935 Constitution
• forms of SC Decisions (SCRA) – published * Legislative body, as responsible for the enactment of laws, was
• unsigned / unreported SC resolutions still form part of formed
source of law
H. Martial Law / Marcos Regime
C. Judicial System * Shift from presidential to parliamentary
* Circulars / orders / letters of instruction (also during the later
• SC -- CA -- RTC/MTC ] accept criminal and civil cases part of the Batasang Pambansa)
governed by rules of courts * President as both head of executive and legislative
• Criminal Courts – no jury trial; court system was * Proposal submission ad ratification of 1973 Constitution
patterned after the American court system except the
concept of jury I. The 1987 Constitution
* reverted to presidential form of government
• Codes which form part of this system: The Revised
* Separation of powers: executive, legislative and judiciary
Penal Code effective 1932; Civil Code enacted in 1950
* Restoration of democracy
which covers broad aspects of civil law such as
ownership, property, tort, persons and family relations,
July 18, 2006
etc; Code of Commerce, precedent of mortgage law,
Overview of the 1987 Constitution
corporation law, insolvency law; Labor Code enacted in
References:
the 1970s which was an effort to consolidate laws on
[a] Malolos Constitution, [b] 1935 Constitution, [c] 1973
labor, from labor standards and labor relations;
Constitution
Corporation Code along with Investment Code; Local
[d] Provisional Constitution of 1986 – adopted some revisions of
Government Code; Revised Administrative Code
the 1973 Constitution; process for drafting of 1987 Constitution
promulgated in 1997; Fire Code, Tariff and Customs
was expressed; Proclamation No. 3 – how to draft the 1987
Code; and others.
Constitution
III. Points in the Development of Phil. Legal System
The 1987 Constitution (February 2, 1987)
Periods: Pre-Conquest, Spanish, American, Commonwealth,
Martial Law, Post Martial Law (Republic) - It was drafted by a Constitutional Commission headed
by J. Muñoz Palma. ConCom took around 138 days
A. Pre-Conquest Period drafting the Constitution.
* Refers to unwritten customs and practices - There has been a dispute between the dates of
* 2 Codes attributed to this period: Code of Maragtas and Code ratification: Feb. 2 – casting of votes, and Feb. 11 –
of Kalantiao (a Penal Code, however doubtful whether this is a Proclamation of the Constitution
true or real record, its authenticity is questioned for records - 1973 Constitution (different from 1987 Constitution)
don’t support such claim of veracity and authenticity) was considered ratified although the manner by which
* Custom law was passed orally it has been ratified was done by viva voce (raising of
hands), Yes or No by citizens gathered in citizen’s
B. Spanish Period assemblies.
* Governance was highly centralized - The study of the 1987 Constitution is bifurcated:
* In the manner of laws, Spain implemented 2 forms of laws: (1) Constitutional Law I, Structure of Government, and
applicable only to Spaniards, and (2) applicable to colonies Constitutional Law II, Bill of Rights. However, other
* The Governor-General enjoyed law making powers commentators believe that it can be divided into 3,
* By the end of the Spanish occupation, there were 3 sources of namely: I – Constitution of Rights and Liberties, II –
laws namely: (1) law/Constitution of Spain, (2) laws enacted in Constitution of Government, and III – Constitution of
Phil. Islands, and (3) compromised cases decided by all courts Sovereign
/ custom law
Characteristics of (1987) Constitution
C. American Occupation [1] Written Constitution with all its implications (in 1 case, it was
said that the 1987 Constitution has been crafted in modern
constitutions)
LAW 115: LEGAL HISTORY A2010
58
[2] Considered as Pro Life, Pro Filipino (national Economy and • Philippine Bill of 1902 which created the Philippine
Patrimony), Pro People (people’s initiative recognized), Anti- Assembly as the lower chamber of legislature
Dictatorship (powers of the President have been significantly composing of Filipinos (upper chamber was Phil.
limited) and Pro Poor Commission, all Americans), and which expanded the
Bill of Rights
General Features of the 1987 Constitution • Philippine Autonomy Act of 1916, Filipinization of
• It provides for Rights of Republican and Democratic legislature and which promised Phil. Independence as
State soon as stable government is established.
• Separation of Powers • Tydings-McDuffie Act which provided authority to Phil
• Recognizes expressly the power of Judicial Review Legislature to call election of delegates to a
• Contains a Bill of Rights Constitutional Convention.
• Presidential Form of Government with separation of
powers, meaning, a system of checks and balance that [2] Constitution-making for the 1935 and 1973 Constitutions
allows each branch to act independently of the other, Q: When was there real separation of powers according to
but a separation hat was hoped to breed cooperation McKinley? Answer: Philippine Autonomy Act
rather than conflict
J. Mendoza: the purpose of separation of powers at that time
Changing the Constitution was to insure that the Governor General, by tradition who was
* The urgency to draft and ratify a Constitution is in response to American, was to reign supreme, which evidences a “strong
or in order to attain normalcy. executive” (Majul: some bases on the socio-political condition of
* Changing the Constitution can be by amendment (certain the Phils. in history)
portions) or by revision (entirety of the Constitution).
* The recognized modes to amend or revise the Constitution is • 1935 Constitution was established or made by virtue of
by Congress [1] by ¾ votes of all its members or [2] calling a the Tydings-McDuffie Act; it had to be crafted with a
Constitutional Convention, and also [3] by people’s initiative, republican character [Mendoza attributed this
but limited only to amendments and not revision republican character to Tydings but Majul attributed
* Note however that aside from the recognized modes, the this to the socio-political conditions]; the 202 delegates
people/sovereign can change the Constitution by means of a were elected; certain conditions were provided it had to
successful revolution have separation of powers and a bill of rights.
Majul’s article, A Legislature of Dictatorship, should have served • 1973 Constitution was by way of a Constitutional
to provide: Convention of around 300 delegates; 17 mos. In the
- ideas on Constitution during that period course of convention Martial Law was proclaimed;
- ideas on Constitution-making during a revolution (and challenged from the time it was proposed up to the
not just in times of normalcy) time of its ratification; amended in ’80, ’81, 84 (e.g.
- Mabini provides ideas in 2 areas: [a] Constitution and modified parliamentary where Pres. Had legislative
Constitutional making in normal times, and [b] powers)
Constitution and Constitutional making in ties of
expediency like impending hostilities. During that time Note: Majul, Mendoza, Fernando – all made reference to the Bill
he said that it’s not the right time to draft/make a of Rights
Constitution or a permanent structure of government,
rather a government based on values. Hence a
flexibility leaning toward a strong executive than Fernando’s article
legislature. • Discusses Separation of Powers, Judicial Review and Bill
of Rights
Structure of Government: Presidential or Parliamentary? • In 1973, there was an attempt to visit the Malolos
• 1935 – unicameral at first but it was amended and it Constitution. It was said to be unique since its Bill of
became bicameral Rights included economic and social rights.
• 1973 – unicameral (Interim National Assembly • 1973 and 1987 – both have reference to social justice
• 1987 – bicameral (Senate and House of
Representatives) ~ Majul: on June 12, declaration of independence in Kawit, and
on Sept. 15, 1898 Congress was inaugurated, then drafted their
Justice Mendoza’s article Constitution in the North, in Malolos. Q: Any significance why?
• Constitutionalism was not known in the Philippines until Answer: Because they were on retreat, they were drafting their
1896 (the short-lived Malolos Constitution which is only Constitution while on retreat. Imagine the range of ideas they
of historical interest) had to contend with: [i] do we want a constitution with a
• Constitutional problem after or upon Treaty of Paris: specification of right?, [ii] do we want a strong government?, [iii]
there was a gap, a constitutional void; the Phils. was an strong executive or legislature? – strong government was
unincorporated territory, hence the civil and political necessary because it’s the only kind of government which can
status f the native inhabitants were of concern because give the Filipinos what they needed at that time.
the U.S. were not so eager to extend her Constitution
to the Phils. • Strong executive (proposed by Mabini) vs. Strong
• Solution: McKinley’s Instruction providing for Bill of Legislature (proposed by Calderon) ~ both as a
Rights response to the situation
2 major periods of Constitution making in Mendoza’s article: Conclusion: (a) No other country has this colored history of how
[1] Organic Acts from 101 constitutions are established and ratified. (b) Continuum of
discussion of Separation of Powers
• McKinley’s Instruction providing for Bill of Rights
• Spooner Amendment which transformed the
August 2, 2006
government from a military to a civil one
LAW 115: LEGAL HISTORY A2010
59
A. Constitution: Constitution-making (b) it was never discussed why these provisions were
B. Basic background on previous charters, including the there, not to benefit Filipinos but to protect vested
Malolos Constitution American interests (which perpetuated from the 1935
C. (Recurring) Ideas on Constitutional Design: design and Const) ~ Nationalist and Protectionist tradition in
structure of government (string executive, weak Constitution
legislature, etc.) • Land, energy, fisheries and mining ~ these sectors or
D. (To some extent) Role of Court/ Supreme Court areas are always in constant question
• Constitutional Intent: if we amend the economic
Note: (a) Today, we are in the midst of a present effort of provisions, we should also remove the provisions where
constitutional reform, to amend the charter. There are initiatives there is a Filipino First Policy
for economic reforms, popular initiative from presidential to • Question: Is it a matter of changing the economic
parliamentary, a change from centralized to federal, (b) PCCR – provisions? Or is it a matter of the Court’s decisions in
in here we notice that the feature of our Constitution as unique cases that concern economic policy?
because it includes economic provisions • Proper mode of amendment: Constitutional Assembly.
If not feasible, then Constitutional Convention/
The 1973 Constitution
- Early Martial Law cases – relevant in the constitutional 2 Questions: (1) Do you agree with PCCR? State your reasons
amendments (2) Of all the charters, which charter do you think functions most
- The 1973 Const. has obtained a lot of challenges from the efficiently? How about in the area of economic policy? Why do
inception of the resolution to amend the constitution up to its you think so?
ratification; in every step of the way stood challenges, these
were unmitigated challenges to the 1973 Constitution August 8, 2006
Labor Law
E. Mendoza’s article – describes the challenges to the 1973 I. The Constitution
Const. Art. II Sec. 18
The State affirms labor as a primary social economic force. It
• Look at Lansang case: it tests how cooperative/ pliant shall protect the rights of workers and promote their welfare.
or recalcitrant the Supreme Court is in cases Art. XIII Sec. 3
concerning the powers of the Executive. The State shall afford full protection to labor, local and overseas,
• Doctrine here: where the power of the President to organized and unorganized, and promote full employment and
suspend the writ of habeas corpus is questioned, the equality of employment opportunities for all.
SC has power only to the determination of the Art. III Sec. 8 on Freedom of Association (closely related to self-
sufficiency of factual bases or circumstances organization)
• But the truth is: Is the Court allowed on its own to go The right of the people, including those employed in the public
and collect facts? No. The SC only takes into account and private sectors, to form unions, associations, or societies for
the facts submitted purposes not contrary to law shall not be abridged.
• Milieu: the functioning legislative could not be formed
based on the structure of the 193 Const. With this II. The Labor Code and its IRR
vacuum then, the President had legislative and Labor Standards: kinds of employment, wage, hours of work,
executive powers. benefits, termination
Labor Relations: collective bargaining, certification elections,
Constitutional Change and Reform unfair labor practice
1973 Charter – was an opportunity to revise the 1935 Charter to
design a charter that would lean to Filipino indigenous people; III. Other Laws
the 1973 charter’s desire to be culturally appropriate, one
reason to reform the 1935 charter.
• Laws have been passed to benefit laborers: 13th month
pay, anti-sexual harassment, SSS and GSIS benefits,
Economic Provisions and Some Conclusions on the PCCR self-organization in Government
• PCCR – was an effort to propose changes in the 1987
IV. Other Points
charter regarding the economic provisions
Pending bills in Labor
• “economic provisions” – those provisions which deal a. Pending bill to strengthen unions in the Phils.
with economic policy and economic activity b. Abolish NLRC and form an agency to resolve disputes
• Areas of concern: Art II Sec. 91 and Sec 192, Art. XII on Kinds of Employment
National Economy and Patrimony, Art XIV, and Art XVI - regular
on General Provisions - contractual
- casual
• Objection: Constitutional amendments have nothing to - project
do with foreign direct investments (Note: see page 409 - probationary
of PCCR article re arguments For and Against the - fixed contract
economic changes) Fernandez’s article: (salient points discussed in lecture)
• 2 Points: (a) in their study, no attention was really (1) Pre Conquest Period: alipin, by capture and by debt
made on the effect of having these economic (2) Spanish Period:
provisions (in the 1935, 1973 and 1987 charters), and - assimilated this practice through the pueblos, cabeza
de barangay etc; there was no effort industrialize
1
Art II Sec.9. The State shall promote a just and dynamic social order that
- there was the Galleon Trade but foreign merchants sis
will ensure the prosperity and independence of the nation and free the not invest, rather, they just sold their properties.
people from poverty through policies that provide adequate social services,
promote full employment, a rising standard of living, and an improved - Polos y Servicios: Filipino males were required 40 days
quality of life for all. per year without pay to work in Spanish shipyards
2
Art II Sec.19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
LAW 115: LEGAL HISTORY A2010
60
• Speaking of wage, there were different workers who Romualdez’s article . Rough survey of legislation – discusses the
had different ways to earn wages by the nature of work notion of how to formulate written laws and how to promulgate
they had: them, as present as early as
- namomoo – he worked only in a household and rarely Fernandez’s article:
does he get paid, only payment of indebtedness - Kinship : important nexus and liability;
- tihog – also called hired hand where he may only be multilateral kinship
paid with meals - family as a legal entity not recognized in pre-
- himakdul –also called messenger or agent who may be conquest period (today family is an important social
paid in particular amounts unit)
- himuli – one who is employed under hazardous - multi and bilateral kinship prevented or
circumstances who also earned hazard pay delayed the recognition of family as a legal entity.
- agricultural employees however, the important function this set up served was
Note other concepts: (a) alipin = share tenancy (effort to abolish to maintain peace and order
share tenancy); (b) the concepts of sangla, and (c) the manner
of terminating servitude Marriage in Pre-Conquest
(a) was essentially a private affair (as opposed today where
(3) American Period marriage is regulated by law, the Family Code); regulation was
- there was a sudden issuance of laws on labor minimal then
- most of our labor laws today are patterned in the American (b) 3 stages were recognized: [1] wife capture, [2] wife purchase
labor laws and [3] mutual consent
a. 8 hours of work Q: What was the relevant point of regulation (in marriage)?
b. workmen’s compensation – separate benefits aside from It showed the extent to which marriage affected the
wage, e.g. health benefits, injury etc. household.
- Objective: To ensure detriment of one household is
Trade Unionism – reference to guilds which were considered as compensated, the basis of which is the loss to bride’s
the first trade unions; however, looking at history more closely household and gain to groom’s household when marriage
these guilds were not organized; these were created for between a man and a woman takes place.
purposes of welfare ad social association; but still, their - Emphasis re compensation system: pre-conquest period
relationships were spring for the formation of trade unions did not have a uniform or regular medium of exchange. Q:
was this an effective measure?
Important aspects of Trade Unionism: (c) Observation: keeping of more than 1 wife was not a general
- laws recognizing trade unions custom in pre-conquest
- laws recognizing registration of unions (d) allowed separation and divorce, under valid reasons; there
- derived, intended and unintended effects of laws were economic sanctions. (note also that absolute divorce in the
- PD 442 – consolidation of all labor laws and effect in Phils. Was allowed during the American and Japanese periods)
unionism; requirements for registration and
maintenance of trade unions; intended to protect labor - Notion of different kinds of children, legitimate
(e.g. collective bargaining) resulted in deregistration of and illegitimate was already present in pre-conquest
unions; ban on strikes and assemblies times (In Spanish period, distinction between natural
and spurious children)
• The more than 100 years of Philippine unionism shows - Inheritance and succession not only of
that labor movement is still weak and internally divided material estate but also of status and political office.
due to ideological orientation and political party - Adoption: concept of system of compensation
affiliations as well as patriarchal and legalistic to adopting parent; purpose of adoption to improve
leadership. one’s status (as opposed to Roman case where purpose
• Minimum Wage Law – factor of cheap labor policy of adoption was to continue lineage)
• Phenomenon of sending workers overseas. (relate this - Property: everything was for immediate
to minimum wage law and other concepts) consumption; the primary mode of acquisition was
production (what they acquired was what they
August 23, 2006 created); exchange or trade was only subsidiary (note:
Overview of Present Civil Law however, conquest period arrested the development of
Civil law is one of the most extensive areas of law. Scope of Civil acquisition/ exchange/contract law by trade with
law include: effectivity and application of laws, human foreign traders; today contract as a regulation, contract
relations, property and ownership, obligations and contracts as the law between contracting parties)
• Civil Code – preliminary title covering in general the
Spanish Conquest
applicability of laws; one aspect of civil law is persons
Balane’s article. Spanish Antecedents of the Philippine Civil Law
and family relations; concepts which go back to Roman
Law: judicial persons, concept of persons, etc. • Point: that around 57% of the present Civil Code was
based on the Spanish Civil Code, majority of the 57%
• Family Code – marriage (its relationship in Constitution;
was about persons and family relations
in constitution, marriage as inviolable social institution;
law regulates marriage in several ways) • Discussed status of law in the Phils.
• Adoption Act • There was a different notion of “codification” as we
know it today. To “codify” meant to form Spanish law,
• Public Land Law
“compilation”
• Rental Reform Law and Act
• 1530 – Order of application of laws. Problems: [1]
• Property Law
limited scope in civil law, [2] hard to find law (e.g.
• Clerical Correction Law Errors- new law on correction of house of a friend, fiscal’s office, etc.) This confusion in
clerical errors the Philippines mirrored the same confusion in Spain.
This was, however, only resolved later, during the later
Pre-Conquest Society portion of Spanish Conquest)
LAW 115: LEGAL HISTORY A2010
61
• Sources of Civil Code in the Philippines – although the [2] Separate courts for church, merchants, military and Chinese
American occupation came just after the Spanish Civil [Note that in Balane’s article on Civil law, there is a feature on a
Code was promulgated, the Spanish Civil Code was still dual court system: colonizers/Spaniards and colonized/Filipinos.
in force because it was not regarded with a political This is important because it indicates that even at that time
character. So aside from the Spanish Civil Code, other bringing suits to those with expertise (people who are experts in
sources were the civil codes of France, Argentina, a particular aspect) where parties dispute is already manifest.]
Switzerland and Germany. [3] Organization of courts – actual function of courts was of
more interest than the administration of justice
Bocobo’s article, The New Civil Code
Salient points of his article include: Challenge: Explain by comparing: How were disputes handled?
• The concept of supremacy of justice of legalism (by From: Pre-Conquest – Spanish – American – up to the Present
legalism, it is meant “rights are based strictly upon
law”) Tadiar’s article, A Philosophy of a Penal Code
• Creation of civil actions similar to American torts Note the following points (please refer to the article):
• Elevation of Philippine customs into law - What is the primordial aim of criminal law?
- What are the different Penologic Objectives? Explain
August 30, 2006 and differentiate.
Criminal Law - Identify what is the root of criminal law.
What forms criminal law in the Philippines?
[a] RPC – Book I General Rules, Basic Principles, Penalties and P. Fernandez’s article, Crime and Punishment
how to impose them; Book II Specific Felonies (Note: look at 2 Note the following points (please refer to the article):
areas, namely, the act, and the penalties) - Principal features of pre-conquest law as far as crime
[b] Special laws (e.g. Dangerous Drugs Act, Anti-Plunder Act, and punishment
etc.) - What was the subject, and also the principles observed
in the imposition of penalties?
- Identify significant crimes in pre-conquest and how are
How did criminal law come to be? these penalized.
Spanish Penal Code of 1887 – precursor to Penal Code. It is
important to note that prior to the promulgation of the Spanish September 12, 2006
Penal Code, [1] the condition of the body of laws in the Continuing discussion on Criminal Law
Philippines is a situation where there was confusion as to laws; P. Fernandez’s article, Pre-Conquest Phils., Crime and
discretion in determining the nature of offenses and the Punishment
resulting penalties was done by the judges since there was no Distinction between:
law written; [2] the capital punishment was carried out through (a) conduct harmful to community
hanging, firing squad and the garrote. vs.
(b) conduct prejudicial to individual
The Revised Penal Code (1932) – before the RPC, the Americans Q: Why is this distinction important?
used criminal laws already in place to suppress recalcitrant Recall: crimininalization – identifying the criminal acts and
Filipinos; major change came only after 30 years of American imposing the subsequent penalty (e.g. murder, homicide, theft,
occupation with the RPC’s promulgation; there were indications insult to chief)
of movements in criminal law e.g. it penalized the mere Point: Distinction was not made to criminalize a set of actions
advocacy of independence: and forego another set of actions. Rather, distinction was
• Act No. 92 or the Anti-Sedition law which made sedition necessary to form or inform the process of criminalization,
a crime punishable by death meaning, each act (conduct harmful to community or conduct
prejudicial to individual) was important to determine the act if it
• Act No. 518 or the Brigandage Act which was passed by
is criminal and the corresponding penalty.
the Phil. Commission penalized brigandage as a crime
punishable by death or imprisonment of not less than
In pre-conquest, there was a humane mode of punishment: even
20 yrs. Along with the anti-sedition law, this was
if pecuniary, notwithstanding death penalty, there was no resort
enacted to suppress nationalist forces (Macario Sakay
to torture; there was no wanton cruelty
was convicted of this crime. On appeal, SC affirmed
lower court’s decision)
Bankoff on Punishment
How has the concept of punishment changed in the 19th
4 Penologic Objectives (see discussion in Tadiar’s article)
century?
* Retributive
- incarceration or imprisonment was introduced (leading
* Preventive/Restrictive
Bankoff to conclude that imprisonment was/became
* Rehabilitative
the foundation of the penal system)
* Reformative
- move from corporal, capital punishment to
imprisonment what did this mean to the society? What
What were the changes in Criminal Law?
were the effects? Note: shift in almost all aspects with
Changes:
the introduction of prisons as foundation or primary
* Reforms as to improve training of caliber officials
mode of punishment)
* Separate judicial and executive authority (independent
- to illustrate: the corporal punishment by beating and
judiciary was not a feature of Spanish)
the capital punishment by firing squad, garrote or
* Increase in litigation (as with civil and penal laws)
hanging did not need places of detentions to maintain
* Systematic rule on civil and criminal procedure which was
prisoners for long periods; nor was there need of
absent prior to 1887
personnel, and other basic needs such as food, and
also facilities in prison system.
In Bankoff’s article, note the following points:
- The 1887 Penal Code provided for an increase in
[1] System of special courts based on class and race
penalty for 6 years or more.
LAW 115: LEGAL HISTORY A2010
62
- The ideology of work also came about by the
recognition of incarceration as mode of punishment Point: Even facts, some historical facts may be subjected to
- Character of the warden: How did this affect the different interpretation
criminal justice system?
Recall the cases discussed: Echegaray, Mirpuri, Fabre,
People v Echegaray: we see from the case that death penalty Limsiongco etc.
may be imposed if conditions in the Constitution are met. Death Questions:
penalty per se, however, is not considered cruel and unusual. • What are the examples of the use of history in law?
• What is the importance of the use of history in law?
Capital Punishment
- Spanish Period: burning, decapitation, drowning Again recall the cases and determine: What were those cases
where history did have material importance to the disposition of
- From 1840-1857: there were 1,703 death sentences the dispute in the cases?
with 46 actual executions. Some of those who were
executed were Gomez, Burgos and Zamora, J. Rizal, Estrada v Escritor: note the importance of historical facts as
Magat Salamat among others. evidence. And also historical arguments presented
- American Period: adopted the provisions on the
Spanish Penal Code; treason, murder, rape, robbery Today: Situation of Constitutional Amendment
with homicide, parricide, brigandage, and sedition There is a petition filed in the SC for certiorari re ComElec denial
meted out death penalty of petition by invoking Santiago v. ComElec. Also House
Resolution 1230 proposing amendments to the Constitution:
- Japanese Occupation: extra-judicial executions were Presidential to Parliamentary, Federal in 10 years, and, Lifting of
widely practiced; this was one reason why no some economic restraints among others.
documents were recorded.
- Marcos Period: (a) death penalty as deterrence to Jaraula: [1] Procedural. ¾ vote joint based on intent of
crimes. Note Tadiar’s point on deterrence: not the Constitutional Commission. [2] Substantive.
weight of penalty that acts as deterrence but the presidential to parliamentary, federal government in 10
certainty and celerity; (b) capital crimes punishable by years, and, lifting of some economic restraints.
death penalty increased t 24, some of which include Gordon: Procedure is as important as substantive. (Looking at
arson, subversion, hijacking, illegal possession of history and the was Constitutional change was done,
firearms; there were 19 executions which took place only 1935 followed the constitutional process more or
before Martial Law and 12 executions during Martial less.) Today is the time to act on changes in the proper
Law. [e.g. Jose et al who gang-raped dela Riva in 1972; way.
Marcelo San Jose by electrocution; Sen. Benigno Aquino Justice Mendoza: [1] Ideal is Constitutional Convention since the
was also sentenced to death penalty during Martial Law extent of the changes in House Resolution 1230
but was not executed] involves full discussion and also in order to avoid
partisan interests. [2] How about the problems as to
- Post-Martial Law Period: death penalty did not come to cost? Constitutional amendment is worth putting it off
be imposed until the enactment of the Heinous Crimes in the meantime until we have funds. No one has
Act. (a) Ramos Administration: R.A. 7659 – 46 crimes argued in a convincing manner that changes to the
were covered by death penalty. (b) Estrada Constitution are urgent.
Adminisration: Leo Echegaray in Feb. 1999 and 6
others were executed by lethal injection, ironically, Noting the importance of history:
crime rate increased in 1999. [1] Importance of Legislative history (e.g. Record of
Constitutional Commission.
Bankoff’s article on Courts [2] History in terms of the development of Constitution in the
• It provided the basic structure of the legal system in Philippines
the late 19th century
• Legal profession requirements: pay attention to the
abogadillos. Who were abogadillos then? Even today
notwithstanding the increase in aspirants to the legal
profession, there are still places in the country where
one cannot find able legal counsels; hence the resort to
legal assistants or abogadillos
• Note the summary of reforms and measure for their
success that were pointed out in the article
• Delay in the disposition of cases
• Focus on Special Courts: (a) distinction of courts based
on race, Filipinos and the Spaniards, (b) segregation in
4 courts namely: ecclesiastical, military, Chinese and
merchant courts. (Today, we also have special courts
like the Sandiganbayan and the Court of Tax Appeals)
• Mode of Dispute Resolution: some disputes were
resolved in quasi-judicial administrative agencies.
Some other modes of dispute resolution today would
include mediation, arbitration