University of the East

College of Law

A Written Report

For the Subject of

“Philosophy of Law”

Title:

“A Study on

Critical Legal Theory”

Submitted to:

Atty. Ron Michael M. Villanueva

Submitted by:

Section: 1-A-1

Group No. 5

Members:

Bonifacio, Elaine Joy D.

Jacalne, Jericho V.

Jagunap, Jasmine

Neo, Justin Francis Kurt DV.

Sanchez, John Russel

July 20, 2019

Table of Contents

Written Report Outline ………………………………………………………………………………… II

Introduction ………………………………………………………………………………………………… 1

Philosophers of Critical Legal Theory …………………………………………………………… 4

Cases …………………………………………………………………………………………………………… 8

Bibliography ………………………………………………………………………………………………… 31

I
Written Report Outline: Critical Legal Theory

I. Introduction

Critical Legal Theory

An Overview

What is Critical Legal Theory

History

Critical Legal Studies Movement

II. Philosophers of Critical Legal Theory

A. Robert W. Gordon

B. Mark Victor Tushnet

C. Sigmund Freud

III. Cases

Ocampo et.al. V. Enriquez, G.R. No. 225973

Republic V. Sereno, G.R. No. 237428

People of the Philippines V. Oares, Criminal Cases No. C-102925-27

IV. Bibliography

II
I. Introduction

Critical Legal Theory

An Overview

A family of new legal theories, launched since 1970, share commitments to

criticize not merely particular legal rules or outcomes, but larger structures of
conventional legal thought and practice. According to critical legal scholars, dominant
legal doctrines and conceptions perpetuate patterns of injustice and dominance by
whites, men, the wealthy, employers, and heterosexuals. The "Crits" argue that
prevailing modes of legal reasoning pretend to afford neutral and objective treatment
of claims while shielding structures of power from fundamental reconsideration.
Critical theorists also maintain that despite the law's claims to accord justified,
determinate and controlled expressions of power, law fails on each of these
dimensions and instead law mystifies outsiders in an effort to legitimate the results
in courts and legislatures.

The "critical" dimension of critical legal studies includes not only efforts to
expose defects, but also affinity with other theoretical projects and social movements.
A variety of scholars and lawyers have joined together to organize symposia,
workshops, and other projects under the headings of critical legal studies, feminist
legal theory, and critical race theory. Although they share many points of departure
and methods of attack, critical theorists also risk diverging into increasingly
specialized narrow splinter groups. The newest developments include Lat-Crit
conferences and work inspired by Queer Theory in other academic fields. Critical
theorists engage in particular critiques of other theoretical approaches to law, such
as law and economics and moral-theory approaches to legal theory.1

What is Critical Legal Theory?

Critical legal studies (CLS) is a theory which states that the law is necessarily
intertwined with social issues, particularly stating that the law has inherent social
biases. Proponents of CLS believe that the law supports the interests of those who
create the law. As such, CLS states that the law supports a power dynamic which
favors the historically privileged and disadvantages the historically underprivileged.
CLS finds that the wealthy and the powerful use of the law as an instrument for
oppression in order to maintain their place in the hierarchy. Many in the CLS
movement want to overturn the hierarchical structures of modern society and they
focus on the law as a tool in achieving this goal.2

1
https://cyber.harvard.edu/bridge/CriticalTheory/critical1.htm
2
//www.law.cornell.edu/wex/critical_legal_theory

1
History

CLS was officially started in 1977 at the conference at the University of

Wisconsin-Madison, but its roots extend earlier to when many of its founding
members participated in social activism surrounding the Civil Rights movement and
the Vietnam War. The founders of CLS borrowed from non-legal fields such as social
theory, political philosophy, economics, and literary theory. Among noted CLS
theorists are Roberto Mangabeira Unger, Robert W. Gordon, and Duncan Kennedy.3

Critical Legal Studies Movement

A self-conscious group of legal scholars founded the Conference on Critical Legal

Studies (CLS) in 1977. Most of them had been law students in the 1960s and early
1970s and had been involved with the civil rights movement, Vietnam protests, and
the political and cultural challenges to authority that characterized that period. These
events seemed to contradict the assumption that American law was fundamentally
just and the product of historical progress; instead, the law seemed a game heavily
loaded to favor the wealthy and powerful. But these events also suggested that
grassroots activists and lawyers could produce social change.

Fundamentally convinced that law and politics could not be separated, the
founders of CLS found a yawning absence at the level of theory. How could the law
be so tilted to favor the powerful, given the prevailing explanations of law as either
democratically chosen or the result of impartial judicial reasoning from neutral
principles? Yet how could the law be a tool for social change, in the face of Marxist
explanations of law as mere epiphenomenal outgrowths of the interests of the
powerful?

Hosting annual conferences and workshops between 1977 and 1992, CLS
scholars and those they have influenced try to explain both why legal principles and
doctrines do not yield determinate answers to specific disputes and how legal
decisions reflect cultural and political values that shift over time. They focused from
the start on the ways that law contributed to illegitimate social hierarchies, producing
domination of women by men, nonwhites by whites, and the poor by the wealthy.
They claim that apparently neutral language and institutions, operated through the
law, mask relationships of power and control. The emphasis on individualism within
the law similarly hides patterns of power relationships while making it more difficult
to summon up a sense of community and human interconnection. Joining in their
assault on these dimensions of law, CLS scholars have differed considerably in their
particular methods and views.

3
//www.law.cornell.edu/wex/critical_legal_theory

2
 Many who identify with the critical legal studies movement resist or reject efforts
to systematize their own work. They seek to express claims of textual ambiguity and
historical contingency in their own methods. Influenced by post-modernist
developments in cultural studies, these critical scholars prefer episodic interventions
to systematized theories. Some critical scholars press hard on a particular line of
argument and then shift away from it in order to avoid treating the argument itself
as a kind of fetish or talisman.

Some critical scholars adapt ideas drawn from Marxist and socialist theories to
demonstrate how economic power relationships influence legal practices and
consciousness. For others, the Frankfurt School of Critical Theory and its attention to
the construction of cultural and psycho-social meanings are central to explaining how
law uses mechanisms of denial and legitimation. Still, others find resonance with
postmodernist sensibilities and deconstruction, notably illustrated in literary and
architectural works. Some scholars emphasize the importance of narratives and
stories in devising critical alternatives to prevailing legal practices. Many critical legal
scholars draw upon intellectual currents in literature, pop culture, social theory,
history, and other fields to challenge the idea of the individual as a stable, coherent
self, capable of universal reason and guided by general laws of nature. In contrast,
argue critical scholars, individuals are constituted by complex and completing
sources of ideology, social practice, and power relationships.

Despite their variety, CLS scholars commonly:

1. Seek to demonstrate the indeterminacy of legal doctrine and show how any
given set of legal principles can be used to yield competing or contradictory
results;

2. Undertake historical, socioeconomic and psychological analyses to identify

how particular groups and institutions benefit from legal decisions despite the
indeterminacy of legal doctrines;

3. Expose how legal analysis and legal culture mystify outsiders and work to
make legal results seem legitimate; and

4. Elucidate new or previously disfavored social visions and argue for their
realization in legal and political practices in part by making them part of legal
strategies.

Some critical legal scholars turned to a critique of rights as their primary

subject.4

4
https://cyber.harvard.edu/bridge/CriticalTheory/critical2.htm

3
II. Philosophers of Critical Legal Studies

A. Robert W. Gordon

A preeminent legal historian, prolific scholar, and gifted teacher, Professor

Robert W. Gordon’s expertise in American legal history, evidence, the legal
profession, and law and globalization spans four decades, his influence on
generations of lawyers and legal scholars incalculable. He has written extensively on
contract law, legal philosophy, and on the history and current ethics and practices of
the organized bar. Professor Gordon is known for his key works, Taming the Past:
Law in History and History in Law (essays on legal history and the uses of history in
legal argument); The Legacy of Oliver Wendell Holmes (1992), and Storie Critiche
del Diritto (Critical Legal Histories) (1995), and is editor of Law, Society, and History:
Themes in the Legal Sociology and Legal History of Lawrence M. Friedman, which
examines and celebrates the scholarship of Stanford’s Marion Rice Kirkwood
Professor of Law Lawrence Friedman5.

Gordon, in his works, believed that there is a darker and more painful side in the
emergence of Critical Legal Studies as a political-cultural phenomenon.6 CLS has
reached a strange juncture in its journey out of obscurity into the glare of intense, if
usually rather distorting, publicity. According to Gordon Critical Legal Studies is often
mentioned in the same breath as “law and economics” as an intellectual movement
that is transforming the study and teaching and maybe someday even the practice of
law.7 In order for us to appreciate the essence of Critical Legal Studies, it is vital that
we pay attention to history; Critical Legal writers, like Gordon, pay a lot of attention
to history - history of the intellectual history of legal doctrine. According to the wise
words of Gordon, “lawyers have used history to criticize the status quo, they have
usually resorted to social and economic history, to show what the original social
context of a legal rule reveals”.8 It can be interpreted from Gordon’s works that
Critical Legal Studies and Critical Legal Histories are intertwined; in order for us to
understand the status quo, we must revert back from the past.

According to Gordon, while Marxist legal scholars see the law as a machine
enabling the projects of the ruling class and liberal scholars see the law as a
collection of “good” rules that are sometimes bent out of shape, CLS legal scholars
claim that the law is a plastic medium that subtly conditions each person’s
experience of the world. These scholars hold that a person’s existence is composed
of many common interactions with the law, which are referred to as legal discourses.
A legal discourse can be anything from interaction with the courts (a formal legal
discourse) to the purchase of an item in a store (informal legal discourse). All of
these legal discourses imply constructed roles on their participants, and each role
has different expectations of behaviour. A CLS legal scholar would say that these

5
(n.d.) retrieved from https://law.stanford.edu/directory/robert-w-gordon/
6
Gordon, Robert W., "Critical Legal Studies as a Teaching Method" (1989). Faculty Scholarship Series.
1358.
7
Ibid.
8
Gordon, Robert W., “Critical Legal Histories” (1984), Faculty Scholarship Series 1368.

4
artificial and arbitrary constructions divide the world into categories that define a
person’s experience.9

Gordon gives the example of sexual harassment. Prior to recent times, this
behaviour was deemed acceptable. There was an expectation to tolerate some level
of this behaviour for a person in the role of manager and a person in the role of
employee. However, fairly recently, this behaviour has been reclassified as
unacceptable. This has changed the nature of the roles constructed for the
participants, which has completely changed the way the employers and employees
behave. The categories created for application to this legal discourse have
fundamentally changed – in turn, changing the way those involved in the discourse
will experience the law.10

For several reasons, the CLS view of law as a collection of legal discourses is
seen as a sub-optimal position by adherents of this school of thought. Although
methods of formal legal discourse are technically open to all, use of these methods
to suit one’s own needs requires money. Therefore, the wealthy and powerful are
able to make better use of this system. Another criticism of the status quo by CLS
scholars is that participation in legal discourses necessarily requires the participants
to accept that the existing social order is just and rational. All claims must be
framed in a way that supports the view that there has been some temporary
disturbance in the normal order. Legal discourses require viewing the world in an
ideal way that presents individuals as free and equal – this is seldom the case. For
these reasons, CLS scholars see the construction of law as a collection of legal
discourses as a force that inhibits social change and promotes the status quo. These
scholars believe that by disassembling these discourses, they can encourage and
accelerate social change.11

9
Robert W Gordon, “Law and Ideology” (1988) 3:1 Tikkun 14.
10
Ibid.
11
Ibid.

5
B. Mark Victor Tushnet

After receiving his J.D. from Yale Law School, Professor Tushnet served as a
clerk to U.S. Supreme Court Justice Thurgood Marshall from 1972-73. He then was a
member of the law faculty of the University of Wisconsin at Madison until joining the
Law Center faculty in 1981. Tushnet is a leading scholar of constitutional law and
legal history. He was the secretary of the Conference on Critical Legal Studies from
1976-85, and is President of the Association of American Law Schools for 2004.12

According to Tushnet, Critical Legal Theory in the United States is best

understood as a way of thinking affected by two features of the historical
circumstances in the late 1960’s. The first is political and second is the Critical Legal
Theory’s historical setting. 13 In an article published by Tushnet in 198614, he averred
that in many ways, Critical Legal Studies is a direct descendant of American Legal
Realism which flourished in the 1920’s and 1930’s, and left an important legacy to all
legal thought. In the same article15, Tushnet made a connection between law and
economics with regard to Critical Legal Studies. As he wrote in his article:

“[T]he legal system, through its rules of property, contract, and tort, creates
a set of entitlement. These entitlements constitute the pattern of wealth-holding
in the society. If you are trying to figure out what the efficient rule of contract of
law is, you cannot take the distribution of wealth as given, because the rule you
come up with defines the distribution of wealth. The second line of attack is that
economic analysis-and by extension policy analysis more generally—necessarily
proceeds by making simplifying assumptions about the world. Law-and-economics
has increasingly relaxed those assumptions to make the economic models more
realistic. But as the realism of the models increases the conclusions that we can
draw become weaker and weaker. The most sophisticated economic analyses end
up where the Legal Realists began, with a list of things we ought to think about.
The third attack on policy analysis is still more general. Legal rules, and the
distribution of wealth do not merely reflect individual preferences. To some
degree, the rules shape those preferences. Decision-makers must, therefore, ask
not only ‘what can we do to provide what people want’ but ‘how will what we do
affect what people want?” xxx

In can be understood from the excerpt of Tushnet’s article that there is a link
between law and economics – according to S. Haggard (2011) it is considered that
the rule of law determines economic development in a way that ensures: safety of
subjects in law. Protection of property rights, the realization of obligations,
government control and protection of corruption. As safety of subjects in the law, it
still implies the creation of a legal system that establishes public order. 16

12
(n.d.) retrieved from https://www.law.georgetown.edu/faculty/mark-tushnet/
13
Tushnet, M. V., “Critical Legal Studies and The Rule of Law” (2016) pp. 2-4.
14
Tushnet, M. V., “Critical Legal Studies: An Introduction to its Origins and Underpinnings; Journal of
Legal Education”, Vol. 36, No. 4 (December 1986), pp 505-517.
15
Ibid.
16
Kocevska, K., “Rule of Law – Condition For Economic Development (Republic of Macedonia)”, Vol. 11,
Issue 1 (2015) p. 185.

6
C. Sigmund Freud

Sigismund Schlomo Freud was born on 6th May 1856 to Jewish parents, Amalia
and Jakob Freud, in a part of the Austro-Hungarian Empire now in the Czech
Republic. When Sigmund was three, the Freuds moved to Vienna. He excelled
academically, developing a passion for literature, languages and the arts that would
profoundly influence his thinking about the human mind. Freud became very
interested in medical and scientific research, and went on to study medicine at the
University of Vienna. While studying, Freud developed a particular fascination with
neurology, and later trained in neuropathology at the Vienna General Hospital. 17

Freud’s work is an elaboration of clinical concepts designed to alleviate psychical

suffering without trying to get people to consciously improve. The idea is to tap into
the unknown causes of their behavior. For Freud most civilizations originate in
violence, which gives rise to guilt. In order to alleviate this guilt and to avoid the
repetition of such violence, individuals unite and decide to lay strict guidelines for the
social organization of desire on the one hand and to empty the place of power on the
other, so that all are equal before the law, so as to avoid anger and further violence.
Freud concludes that the discourses of civilization and primarily of law, function as
the Superego of culture (i.e. the law tells you not to kill people who annoy you and
sleep with anyone you fancy etc). Certain thinkers have argued that law being the
superego of culture, represses the singular desires of its subjects and that these
repressed desires can be revealed using the method devised by Freud to uncover the
repressed content of the unconscious. 18

Psychoanalytic inquiry into the possibility of deciphering the repressed content of

the law with the help of the Freudian theory of the Superego was developed in the
UK by Peter Goodrich. The central idea here is that legal subjects come to love
authority figures through a complex mechanism of displacement, viz:

(e.g.) I give up some of my sexual desires by abiding by certain laws, against

rape, sexual assault etc., & this repressed libidinal energy is then desexualized
and displaced onto authority figures- explaining why we accept and enjoy law.19

17
(n.d.) retrieved from https://psychoanalysis.org.uk/our-authors-and-theorists/sigmund-freud
18
Caudill, David S. (1991) "Freud and Critical Legal Studies: Contours of a Radical Socio-Legal
Psychoanalysis," Indiana Law Journal: Vol. 66: Iss. 3, Article 1.
19
Ibid.

7
III. Cases

Ocampo et. Al. v. Enriquez

G.R. No. 225973 8 November 2016

Facts:

During the campaign period for the 2016 Presidential Election, candidate Rodrigo
R. Duterte publicly announced that he would allow the burial of former President
Ferdinand E. Marcos at the Libingan ng mga Bayani (LNMB).

On May 9, 2016, Rodrigo R. Duterte won.

On August 7, 2016, Secretary of National Defense Delfin N. Lorenzana issued a

Memorandum to Chief of Staff of the Armed Forces of the Philippines (AFP), General
Ricardo R. Visaya regarding the interment of the late former president at the LNMB.

On August 9, 2016, AFP Rear Admiral Ernesto G. Enriquez issued directives to

the Philippine Army (PA) Commanding General to have the remains of Marcos inter
from Ilocos Norte to LNMB.

Petitioners were dissatisfied with the foregoing issuance. Hence, the following
petitions:
Petition for Certiorari and Prohibition filed by Saturnino Ocampo and
several others, in their capacities as human rights advocates or human rights
violations victims as defined under Section 3 (c) of Republic Act (R.A.) No.
10368 (Human Rights Victims Reparation and Recognition Act of 2013).

Petition for Certiorari-in-Intervention filed by Rene A.V. Saguisag, Sr.

and his son, as members of the Bar and human rights lawyers, and his
grandchild.

Petition for Prohibition filed by Representative Edcel C. Lagman, in his

personal capacity, as member of the House of Representatives and as Honorary
Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-
registered corporation and organization of victims and families of enforced
disappearance, mostly during the martial law regime of the former President
Marcos, and several others, in their official capacities as duly-elected
Congressmen of the House of Representatives of the Philippines.

Petition for Prohibition filed by Loretta Ann Pargas-Rosales, former

Chairperson of the Commission on Human Rights, and several others, suing as
victims of State-sanctioned human rights violations during the martial law
regime of Marcos.

8
 Petition for Mandamus and Prohibition filed by Heherson T. Alvarez,
former Senator of the Republic of the Philippines, who fought to oust the
dictatorship of Marcos, and several others, as concerned Filipino citizens and
taxpayers.

Petition for Certiorari and Prohibition filed by Zaira Patricia B. Baniaga

and several others, as concerned Filipino citizens and taxpayers.

Petition for Certiorari and Prohibition filed by Algamar A. Latiph, former

Chairperson of the Regional Human Rights Commission, Autonomous Region in
Muslim Mindanao, by himself and on behalf of the Moro who are victims of
human rights during the martial law regime of Marcos.

Petition for Certiorari and Prohibition filed by Leila M. De Lima as

member of the Senate of the Republic of the Philippines, public official and
concerned citizen.

Issues:

Procedural

Whether or not President Duterte’s determination to have the remains of Marcos

interred at the LNMB poses a justiciable controversy.

Whether or not petitioners have locus standi to file the instant petitions.

Whether or not petitioners violated the doctrines of exhaustion of administrative

remedies and hierarchy of courts.

Substantive

Whether or not the respondents Secretary of National Defense and AFP Rear
Admiral committed grave abuse of discretion, amounting to lack or excess of
jurisdiction when they issued the assailed memorandum and directive in compliance
with the verbal order of President Duterte to implement his election campaign
promise to have the remains of Marcos interred at the LNMB.

Whether or not the issuance and implementation of the assailed memorandum

and directive violate the Constitution, domestic and international laws.

9
Ruling:

Procedural Grounds

No. It is well settled that no question involving the constitutionality or validity of

a law or governmental act may be heard and decided by the Court unless the
following requisites for judicial inquiry are present:

(a) there must be an actual case or controversy calling for the exercise of
judicial power;
(b) the person challenging the act must have the standing to question the
validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest opportunity;
(d) the issue of constitutionality must be the very lis mota of the case.

In this case, the absence of the first two requisites, which are the most essential,
renders the discussion of the last two superfluous.

Moreover, the limitation on the power of judicial review to actual cases and
controversies carries the assurance that the courts will not intrude into areas
committed to the other branches of government. Those areas pertain to questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. As they are concerned with
questions of policy and issues dependent upon the wisdom, not legality of a
particular measure, political questions used to be beyond the ambit of judicial review.

In the exercise of President Duterte’s powers under the Constitution and E.O. No.
292 (Administrative Code of 1987) to allow the interment of Marcos at the LNMB,
which is a land of the public domain devoted for national military cemetery and
military shrine purposes, he decided a question of policy based on his wisdom that it
shall promote national healing and forgiveness.

No. Locus standi, a right of appearance in a court of justice on a given question,

requires that a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional questions.
Unless a person has sustained or is in imminent danger of sustaining an injury as a
result of an act complained of, such proper party has no standing.

Petitioners, who filed their respective petitions for certiorari, prohibition and
mandamus, in their capacities as citizens, human rights violations victims, legislators,
members of the Bar and taxpayers, have no legal standing to file such petitions
because they failed to show that they have suffered or will suffer direct personal
injury as a result of the interment of Marcos at the LNMB.

10
 Taxpayers also merely claim illegal disbursement of public funds without
showing that Marcos is disqualified to be interred at the LNMB by either express or
implied provision of the Constitution, the laws or jurisprudence.

Yes. Under the doctrine of exhaustion of administrative remedies, before a party

is allowed to seek the intervention of the court, one should have availed first of all
the means of administrative processes available. If resort to a remedy within the
administrative machinery can still be made by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction,
then such remedy should be exhausted first before the court’s judicial power can be
sought.

For reasons of comity and convenience, courts of justice shy away from a
dispute until the system of administrative redress has been completed and complied
with, so as to give the administrative agency concerned every opportunity to correct
its error and dispose of the case. While there are exceptions to the doctrine of
exhaustion of administrative remedies, petitioners failed to prove the presence of
any of those exceptions.

In the same vein, petitioners cannot simply brush aside the doctrine of hierarchy
of courts that requires such petitions to be filed first with the proper Regional Trial
Court (RTC). The RTC is not just a trier of facts, but can also resolve questions of law
in the exercise of its original and concurrent jurisdiction over petitions for certiorari,
prohibition and mandamus, and has the power to issue restraining order and
injunction when proven necessary.

Substantive Grounds

No. There is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or
arbitrarily, out of malice, ill will or personal bias. None is present in this case.

No. As the OSG logically reasoned out, while the Constitution is a product of
collective history as a people, its entirety should not be interpreted as providing
guiding principles to just about anything remotely related to the Martial Law period
such as the proposed Marcos burial at the LNMB. Tañada v. Angara already ruled
that the provisions in Article II of the Constitution are not self-executing. Thus:

By its very title, Article II of the Constitution is a “declaration of principles

and state policies.” The counterpart of this article in the 1935 Constitution is
called the “basic political creed of the nation” by Dean Vicente Sinco. These
principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws.

The petitions must be dismissed.

11
Relation to Critical Legal Theory:

Critical Legal Theory questions the law’s assumptions, such as the assumption
that the people are free and the market is free. Rather, people’s choices and the
market’s behavior are already conditioned by economic, social, ideological, and
political forces, or the present hegemony. This theory is associated with subversives
as it aims for a deconstruction of the law and uses the hermeneutics of suspicion
against legal presumptions, assumptions, and doctrines to advance marginalized
causes.20

In this case, the petitioners, the people that dissent the opinion of the majority,
and the people who believed that the burial of Marcos should not be allowed in the
LNMB are the masses that rise against the law of the ruling of the few.

Petitioners argue that the burial of Marcos at the LNMB should not be allowed
because it has the effect of not just rewriting history as to the Filipino people’s act of
revolting against an authoritarian ruler but also condoning the abuses committed
during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution,
which is a “post-dictatorship charter” and a “human rights constitution.” For them,
the ratification of the Constitution serves as a clear condemnation of Marcos’ alleged
heroism. To support their case, petitioners invoke Sections 2, 11, 13, 23, 26, 27 and
28 of Article II, Sec. 17 of Art. VII, Sec. 3(2) of Art. XIV, Sec. 1 of Art. XI, and Sec.
26 of Art. XVII of the Constitution (G.R. No. 225973).

Sereno, C.J. is one of those who dissents the opinion of the majority. According
to her, the 1987 Constitution is the embodiment of the Filipino nations’ enduring
values, which the Court must zealously protect. The legal standard by which to
measure whether it has properly comported itself in its constitutional role has been
declared in various fashions by the Court itself. It articulated its duty to protect the
environment, women, children, labor, the indigenous people, and consistently, those
who have been or are in danger of being deprived of their human rights.

The Court’s bounden duty is not only to preserve the Constitution but also itself.
The Court must do what is right by correctly balancing the interests that are present
before it and thus preserve the stability of Philippine democracy. If the Court unduly
shies away from addressing the principal question of whether a decision to bury the
former President would contradict the anti-Martial Law and human rights
underpinnings and direction of the 1987 Constitution, it would, wittingly or
unwittingly, weaken itself by diminishing its role as the protector of the constitutional
liberties of the people. It would dissipate its own moral strength and progressively be
weakened, unable to promptly speak against actions that mimic the authoritarian
past, or issue judicial writs to protect the people from the excesses of government.

20
(Philawsophia: Philosophy and Theory of Philippine Law by Bernardos’)

12
 The Court must go through the process of examining whether any claim put
forth herein by the parties genuinely undermines the intellectual and moral fiber of
the Constitution. And, by instinct, the Court must defend the Constitution and itself
(Sereno, C.J. Dissenting Opinion).

Many Filipinos still bear the scars of Marcos’ depredations and plundering during
his one-man rule. The People Power Revolution that ousted him is enough to mean
that his rule as a president ended dishonourably. It is spitting on the legacy of the
people who fought for freedom. Marcos had stolen money, killed and tortured people
through his orders. There are many families who have not had closure from the
years of martial law. Some of their family members or friends are yet to be found.
Women in detention centres were reportedly sexually abused, with people subjected
to psychological, emotional and physical abuse, and the poverty rate of the
Philippines increased during his time as president. These reasons should be enough
for him not to be buried in LNMB (Opinions of people: Krip Yuson and Marah).

13
 Republic vs. Sereno

G.R. No. 237428 May 11, 2018

FACTS:

The Republic of the Philippines, represented by Solicitor General Jose C. Calida,

filed a Petition for the issuance of the extraordinary writ of quo warranto to declare
void respondent Sereno’s appointment as Chief Justice of the Supreme Court (SC)
and to oust and altogether exclude her therefrom.

Despite having been employed at the U.P. College of Law from November 1986
to June 1, 2006, and despite having been employed as legal counsel of various
government agencies from 2003 to 2009, as the certifications executed by the U.P.
HRDO, the Ombudsman and the ORSN of the JBC stand, the only SALNs available on
record and filed by respondent were those for the calendar years 1985, 1989, 1990,
1991, 1993, 1994, 1995, 1996, 1997, 1998, and 2002 or eleven (11) SALNs filed in
her 20-year government service in U.P. No SALNs were filed from 2003 to 2006
when she was employed as legal counsel for the Republic. Neither was there a SALN
filed when she resigned from U.P. College of Law as of June 1, 2006, and when she
supposedly re-entered government service as of August 16, 2010.

After having served as a professor at the U.P. College of Law until 2006, and
thereafter as a practitioner in various outfits including as legal counsel for the
Republic until 2009, the respondent submitted her application for the position of
Associate Justice of the Supreme Court on July 2010.

On August 13, 2010, respondent was appointed by then President Benigno C.

Aquino III (President Aquino III) as Associate Justice, and on August 16, 2010,
respondent took her oath of office as such.

When the position for Chief Justice was declared vacant in 2012, the JBC
announced the opening for applications and nominations, requiring applicants to
submit all previous SALNs up to 31 December 2011 (instead of the usual last two
years of public service) and stating that, “applicants with incomplete or out-of-date
documentary requirements will not be interviewed or considered for nomination.”

Respondent accepted several nominations for the position of Chief Justice, and
submitted requirements in support thereof. On 20 July 2012, the JBC in a special
meeting en banc deliberated on nominees with incomplete documentary
requirements. The minutes of the deliberation show that Respondent has not
submitted her SALNs for a period of ten years, from 1986 to 2006, the duration for
which, according to Senator Escudero (ex officio member of the JBC), she was a
professor in UP and was therefore required to submit SALNs.

14
 The OSRN required Respondent to submit her SALNs for the years 1995-1999,
the period within which she was employed by UP. Respondent replied through a
letter that considering that such government records in UP are more than 15 years
old, “it is reasonable to consider it infeasible to retrieve all those files.” She also
assured OSRN that UP has cleared her of all responsibilities, accountabilities, and
administrative charges in 2006. Lastly, she emphasized that her service in the
government was not continuous, having had a break between 2006 (when her
service in UP ended) and 2010 (when she was appointed to the SC).

Such letter was not examined or deliberated upon by the JBC. Neither can the
JBC Execom produce minutes of the deliberations to consider the issue of substantial
compliance with documentary requirements. However, despite having submitted only
three SALNs (2009-2011), the Report regarding documentary requirements and
SALNs of candidates shows that her name was annotated with “COMPLETE
REQUIREMENTS”, noting her letter that it was infeasible to retrieve all files. The
same annotation was found in another list regarding SALN submissions of 20
candidates, including Respondent.

Respondent was appointed by President Benigno Aquino III on 25 August 2012.

Five years later, an impeachment complaint was filed by Atty. Larry Gadon with the
House Committee of Justice. Included in the complaint was the allegation that
Respondent failed to make a truthful statement of her SALNs. Such a complaint filed
in the House spawned a letter dated 21 February 2018 of Atty. Eligio Mallari to the
OSG requesting the latter to initiate a quo warranto proceeding against Respondent.

Case for the Petitioner:

The Petitioner argues that quo warranto is an available remedy in questioning

the validity of Respondent’s appointment and that the one-year bar rule does not
apply against the State.

It also argues that the SC has jurisdiction over the petition. The petition alleges
that the failure of Respondent to submit her SALNs as required by the JBC
disqualifies her, at the outset, from being a candidate for the position of Chief Justice.
Lacking the required number of SALNs, Respondent has not proven her integrity,
which is a requirement under the Constitution.

The Republic thus concludes that since Respondent is ineligible for the position
of Chief Justice for lack of proven integrity, she has no right to hold office and may
therefore be ousted via quo warranto.

15
Case for the Respondent:

Respondent, on the other hand, argues that the Chief Justice may only be
ousted from office by impeachment on the basis of the Constitution and a long line of
jurisprudence.

Respondent argues that the present petition is time-barred, as it should have

been filed within one year from the cause of ouster, and not from the discovery of
the disqualification.

Responded also contended, that public officers without pay or those who do not
receive compensation are not required to file a SALN.

Respondent argues that for the years that she was on official leave without pay,
she was actually not required to file any SALN. She adds that to require the
submission of SALNs as an absolute requirement is to expand the qualifications
provided by the Constitution.

Respondent argues that the Court’s rationale in Doblada that one cannot readily
conclude failure to file SALNs simply because these documents are missing in the
Office of the Court Administrator's files should likewise be made applicable to her
case.

Respondent also raised the issue of forum-shopping against Petitioner.

PRELIMINARY ISSUES:

1. Whether or not the grant of the motions to intervene is proper?

2. Whether or not the grant of the motions for inhibition against the Associate
Justices on the basis of actual bias is proper?

SUBSTANTIVE ISSUES:

1. Whether or not the Court can assume jurisdiction and give due course to the
instant petition for quo warranto against Respondent who is an impeachable
officer and against whom an impeachment complaint has already been filed with
the House of Representatives?

2. Whether or not the petition is dismissible outright on the ground of prescription?

3. Whether or not Respondent is eligible for the position of Chief Justice?

a. Whether or not the determination of a candidate’s eligibility for nomination is

the sole and exclusive function of the JBC?

16
 i. Whether or not such determination partakes of the character of a political
question outside the Court’s supervisory and review powers?

b. Whether or not the Respondent failed to file her SALNs as mandated by the
Constitution and required by the law and its implementing rules and
regulations?

i. (and if so) Whether or not the failure to file SALNs voids the nomination
and appointment of Respondent as Chief Justice?

c. Whether or not Respondent failed to comply with the submission of SALNs as

required by the JBC?

i. (and if so) whether the failure to submit SALNs to the JBC voids the
nomination and appointment of Respondent as Chief Justice?

d. Whether or not the subsequent nomination by the JBC and the appointment by
the President cured such ineligibility, in case of a finding that Respondent is
ineligible to hold the position of Chief Justice?

4. Whether or not the Respondent is a de facto officer?

RULING ON PRELIMINARY ISSUES:

1. NO

The Court noted the IBP’s intervention and resolved to deny the motions for
intervention filed by several other groups. It observed that intervention is not a
matter of right but of sound judicial discretion

Movants-intervenors have no legal interest in the case, as required in order to

qualify a person to intervene; and that the remedy of quo warranto is vested in the
people, and not in a particular group.

Such individuals do not claim a right to the questioned position, which is the only
time when an individual himself/herself may commence an action for quo warranto.

In this case, the movants-intervenors are neither individuals claiming to be

entitled to the questioned position nor are they the ones charged with the usurpation
thereof.

2. NO

It does not appear that there are grounds for compulsory inhibition. There is no
basis for the Associate Justices to inhibit. The movant must prove bias and prejudice
by clear and convincing evidence to disqualify a judge. Justice Tijam’s statement,
taken as a whole, was only to prod the Respondent to observe and respect the
constitutional process of impeachment.

17
 As to voluntary inhibition, the mere fact that some of the Associate Justices
participated in the hearings of the Committee on Justice determining probable cause
for the impeachment of Respondent does not disqualify them to hear the instant
petition. Their appearance was in deference to the House of Representatives whose
constitutional duty to investigate the impeachment complaint filed against
Respondent could not be doubted. Their appearance was with the prior consent of
the Supreme Court En Banc and they faithfully observed the parameters that the
Court set for the purpose. Their statements in the hearing should be carefully viewed
within this context, and should not be hastily interpreted as an adverse attack
against Respondent.

RULING ON THE SUBSTANTIVE ISSUES:

1. YES.

SC has original jurisdiction over an action for quo warranto. Section 5, Article
VIII of the Constitution states that the SC has original jurisdiction over petitions for
quo warranto. This jurisdiction is concurrent with the Court of Appeals (CA) and the
Regional Trial Court (RTC). Section 7, Rule 66 of Rules of Court provides that the
venue for action for quo warranto is in the RTC of Manila, CA, or SC when
commenced by the Solicitor General. A direct invocation of the SC’s original
jurisdiction, in this case, is justified considering that the qualification of a Member of
the Court is in question, and the issue is of public concern. The petition for quo
warranto is of transcendental importance. The instant petition is one of the first
impressions and of paramount importance to the public in the sense that the
appointment of an incumbent Chief Justice, the highest official of the Judiciary, is
being scrutinized through an action for quo warranto.

On the argument that Respondent is an impeachable officer such that a quo

warranto petition cannot prosper, the Court held that the origin, nature, and purpose
of impeachment and quo warranto are materially different. While both impeachment
and quo warranto may result in the ousting of public officials, the two proceedings
materially differ. At its most basic, impeachment proceedings are political in nature;
while an action for quo warranto is judicial or a proceeding traditionally lodged in the
courts. Furthermore, there is no forum-shopping, as alleged by the Respondent,
because quo warranto and impeachment can proceed independently and
simultaneously, as they differ as to (1) jurisdiction (2) grounds, (3) applicable rules
pertaining to initiation, filing and dismissal, and (4) limitations. The causes of action
in the two proceedings are unequivocally different. In quo warranto, the cause of
action lies on the usurping, intruding, or unlawfully holding or exercising of a public
office, while in impeachment, it is the commission of an impeachable offense.
Likewise, the reliefs sought in the two proceedings are different. Respondent in a quo
warranto proceeding shall be ordered to cease holding a public office, which he/she
is ineligible to hold. On the other hand, in impeachment, a conviction shall result in
the removal of the Respondent from the public office that he/she is legally holding.

18
 Impeachment is not an exclusive remedy by which an invalidly appointed or
invalidly elected impeachable official may be removed from office. Even the
Presidential Electoral Tribunal (PET) Rules expressly provide for the remedy of either
an election protest or a petition for quo warranto to question the eligibility of the
President and the Vice-President, both of whom are impeachable officers. In fact,
this would not be the first time the Court shall take cognizance of a quo warranto
petition against an impeachable officer (see cases of Estrada v. Desierto, et al. and
Estrada v. Macapagal-Arroyo). Furthermore, the language of Section 2, Article XI of
the Constitution does not foreclose a quo warranto action against impeachable
officers: “[T]he Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office ...” The provision
uses the permissive term “may” which, in statutory construction, denotes discretion
and cannot be construed as having a mandatory effect. The word “may” cannot be
understood as to qualify only the imposable penalties because it would lead to the
conclusion that other lesser penalties may be imposed — a situation not
contemplated in the language of the Constitutional provision. The courts should be
able to inquire into the validity of appointments even of impeachable officers. To hold
otherwise is to allow an absurd situation where the appointment of an impeachable
officer cannot be questioned, on the basis of citizenship or membership in the Bar,
for example. Unless such an officer commits any of the grounds for impeachment
and is actually impeached, he can continue discharging the functions of his office
even when he is clearly disqualified from holding it. Such would result in permitting
unqualified and ineligible public officials to continue occupying key positions,
exercising sensitive sovereign functions until they are successfully removed from
office through impeachment.

2. NO

The prescription does not lie against the State. The one-year limitation is not
applicable when the Petitioner is not a mere private individual pursuing a private
interest, but the government itself seeking relief for a public wrong and suing for the
public interest. In the three instances enumerated by Rules of Court, the Solicitor
General is mandated under the Rules to commence the necessary quo warranto
petition, as seen in the use of the word “must.” In Agcaoili v. Suguitan, “As a general
principle, it may be stated that ordinary statutes of limitation, civil or penal, have no
application to quo warranto proceeding brought to enforce a public right.” In effect,
when the government is the real party in interest and is proceeding mainly to assert
its rights, there can be no defense on the ground of laches or prescription. 6
Indubitably, the basic principle that “prescription does not lie against the State”
which finds textual basis under Article 1108 (4) of the Civil Code, applies in this case.

Circumstances obtaining, in this case, preclude the application of the prescriptive

period. That prescription does not lie in this case can also be deduced from the very
purpose of an action for quo warranto, which is to prevent a continuing exercise of
authority unlawfully asserted. The Republic, then, cannot be faulted for questioning

19
Respondent’s qualification for office only upon discovery of the cause of ouster.
Respondent cleverly hid the fact of non-filing by stating that she should not be
required to submit the said documents as she was considered to be coming from
private practice; that it was not feasible to retrieve most of her records in the
academe considering that the same is more than fifteen years old; and that U.P.
already cleared her of “all academic/administrative responsibilities, money, and
property accountabilities and from administrative charges”.

The Court finds it more important to rule on the merits of the novel issues
imbued with public interest presented before Us than to dismiss the case outright
merely on a technicality.

3. NO

a. NO

The Court’s supervisory authority over the JBC includes ensuring that the JBC
complies with its own rules. In interpreting the power of the Court vis-a-vis the
power of the JBC, it is consistently held that the Court’s supervisory power consists
of seeing to it that the JBC complies with its own rules and procedures. Furthermore,
while a certain leeway must be given to the JBC in screening aspiring magistrates,
the same does not give it an unbridled discretion to ignore Constitutional and legal
requirements. The question of whether or not a nominee possesses the requisite
qualifications is determined based on facts and therefore does not depend on, nor
call for, the exercise of discretion on the part of the nominating body. Proceeding
from this, qualifications under the Constitution cannot be waived or bargained away
by the JBC — one such qualification is the requirement of possession of proven
integrity required not only in the Constitution, but also mentioned in administrative
cases, in the Canons of the New Code of Judicial Conduct as a continuing
requirement, the Code of Professional Integrity, and in the JBC009 Rules.

b. YES

Compliance with the Constitutional and statutory requirement of filing of SALN

intimately relates to a person’s integrity. Contrary to Respondent’s postulation that
the filing of SALN bears no relation to the requirement of integrity, the filing of SALN
itself is a Constitutional and statutory requirement, under Section 17, Article XI of
the Constitution, R.A. No. 3019, and the Code of Conduct and Ethical Standards for
Public Officials and Employees. Faithful compliance with the 7 requirements of the
filing of SALN is rendered even more exacting when the public official concerned is a
member of the Judiciary.

Compliance with the SALN requirement indubitably reflects on a person’s

integrity. To be of proven integrity, as required by qualifications under the
Constitution, means that the applicant must have established a steadfast adherence

20
to moral and ethical principles. In this line, failure to file the SALN is clearly a
violation of the law. The offense is penal in character and is a clear breach of the
ethical standards set for public officials and employees. It disregards the requirement
of transparency as a deterrent to graft and corruption. For these reasons, a public
official who has failed to comply with the requirement of filing the SALN cannot be
said to be of proven integrity and the Court may consider him/her disqualified from
holding public office. Respondent’s argument that failure to file SALN does not
negate integrity does not persuade. Whether or not Respondent accumulated
unexplained wealth is not in issue at this time, but whether she, in the first place,
complied with the mandatory requirement of filing of SALNs.

Respondent chronically failed to file her SALNs and thus violated the Constitution,
the law and the Code of Judicial Conduct. A member of the Judiciary who commits
such violations cannot be deemed to be a person of proven integrity. Respondent
could have easily dispelled doubts as to the filing or non-filing of the unaccounted
SALNs by presenting them before the Court. Yet, Respondent opted to withhold such
information or such evidence, if at all, for no clear reason. Her defenses do not lie: 1)
The Doblada doctrine does not persuade because in that case Doblada was able to
present contrary proof that the missing SALNs were, in fact, transmitted to the OCA,
thus rendering inaccurate the OCA report that she did not file SALNs for a number of
years, as opposed to the present case where no proof of existence and filing were
presented; 2) Being on leave from government service is not equivalent to
separation from service such that she was still required to submit SALNs during her
leave; 3) While Respondent is not required by law to keep a record of her SALNs,
logic dictates that she should have obtained a certification to attest to the fact of
filing; 4) That UP HRDO never asked Respondent to comply with the SALN laws holds
no water as the duty to comply with such is incumbent with the Respondent, and
because there was no duty for the UP HRDO to order compliance under the rules
implemented at that time; 5) That Respondent’s compliance with the SALN
requirement was reflected in the matrix of requirements and shortlist prepared by
the JBC is dispelled by the fact that the appointment goes into her qualifications
which were mistakenly believed to be present, and that she should have been
disqualified at the outset.

Respondent failed to properly and promptly file her SALNs, again in violation of
the Constitutional and statutory requirements. The SALNs filed by Respondent
covering her years of government service in U.P. appear to have been executed and
filed under suspicious circumstances; her SALNs filed with the UPHRDO were either
belatedly filed or belatedly notarized, while SALNs filed as Chief Justice were also
attended by irregularities. This puts in question the truthfulness of such SALNs and
would amount to dishonesty if attended by malicious intent to conceal the truth or to
make false statements.

21
c. YES

The JBC required the submission of at least ten SALNs from those applicants
who are incumbent Associate Justices, absent which, the applicant ought not to have
been interviewed, much less been considered for nomination. The established and
undisputed fact is Respondent failed to submit the required number of SALNs in
violation of the rules set by the JBC itself during the process of nomination. The JBC
determined that she did not submit her SALNs from 1986 to 2006 and that, as
remarked by Senator Escudero, the filing thereof during those years was already
required. There was no indication that the JBC deemed the three SALNs (for the
years 2009, 2010 and 2011) submitted by Respondent for her 20 years as a
professor in the U.P. College of Law and two years as a Justice, as substantial
compliance. Respondent was specifically singled out from the rest of the applicants
for having failed to submit a single piece of SALN for her years of service in the U.P.
College of Law. In the end, it appears that the JBC En Banc decided to require only
the submission of the past ten (10) SALNs, or from 2001-2011, for applicants to the
Chief Justice position. It is clear that the JBC En Banc did not do away with the
requirement of submission of SALNs, only that substantial compliance therewith, i.e.,
the submission of the SALNs for the immediately preceding 10 years instead of all
SALNs, was deemed sufficient. Records clearly show that the only remaining
applicant-incumbent Justice who was not determined by the JBC En Banc to have
substantially complied was Respondent, who submitted only three SALNs, i.e., 2009,
2010 and 2011, even after extensions of the deadline for the submission to do so.
Her justifications do not persuade. Contrary to her argument that the SALNs are old
and are infeasible to retrieve, the Republic was able to retrieve some of the SALNs
dating back to 1985. Furthermore, Respondent sought special treatment as having
complied with the submission of the SALN by submitting a Certificate of Clearance
issued by the U.P. HRDO. This clearance, however, hardly suffice as a substitute for
SALNs. Respondent curiously failed to mention that she, in fact, did not file several
SALNs during the course of her employment in U.P. Such failure to disclose a
material fact and the concealment thereof from the JBC betrays any claim of
integrity especially from a Member of the Supreme Court.

For these reasons, the JBC should no longer have considered Respondent for the
interview as it already required the submission of, at least, the SALNs corresponding
to the immediately preceding 10 years up to December 31, 2011.

d. NO.

Respondent’s ineligibility for lack of proven integrity cannot be cured by her

nomination and subsequent appointment as Chief Justice. As the qualification of
proven integrity goes into the barest standards set forth under the Constitution to
qualify as a Member of the Court, the subsequent nomination and appointment to
the position will not qualify an otherwise excluded candidate. In other words, the

22
inclusion of Respondent in the shortlist of nominees submitted to the President
cannot override the minimum Constitutional qualifications.

The Court has ample jurisdiction to void the JBC nomination without the
necessity of impleading the JBC as the Court can take judicial notice of the
explanations from the JBC members and the Office of the Executive Officer (OEO), as
regards the circumstances relative to the selection and nomination of Respondent
submitted to this Court. Neither will the President’s act of appointment cause to
qualify Respondent. The action of the JBC, particularly that of the Secretary of
Justice as an ex-officio member, is reflective of the action of the President.

Such as when the JBC mistakenly or wrongfully accepted and nominated

Respondent, the President, through his alter egos in the JBC, commits the same
mistake and the President’s subsequent act of appointing Respondent cannot have
any curative effect. While the Court surrenders discretionary appointing power to the
President, the exercise of such discretion is subject to the non-negotiable
requirements that the appointee is qualified and all other legal requirements are
satisfied, in the absence of which, the appointment is susceptible to attack.

The Court also took into account, while conceding that the petition is not an
administrative case nor an inquiry into tax evasion against her, that Respondent’s
disposition to commit deliberate acts and omissions demonstrating dishonesty and
lack of forthrightness are discordant with any claim of integrity.

4. YES.

The effect of a finding that a person appointed to an office is ineligible therefore

is that his presumably valid appointment will give him the color of title that confers
on him the status of a de facto officer. For lack of a Constitutional qualification,
Respondent is ineligible to hold the position of Chief Justice and is merely holding a
colorable right or title thereto. As such, Respondent has never attained the status of
an impeachable official and her removal from the office, other than by impeachment,
is justified. The remedy, therefore, of a quo warranto at the instance of the State is
proper to oust Respondent from the appointive position of Chief Justice.

Upon a finding that Respondent is, in fact, ineligible to hold the position of Chief
Justice and is therefore unlawfully holding and exercising such public office, the
consequent judgment under Section 9, Rule 66 of the Rules of Court is the ouster
and exclusion of Respondent from holding and exercising the rights, functions and
duties of the Office of the Chief Justice.

23
Relation to Critical Legal Theory:

“In all but the easiest cases, they argue, it is extra-legal considerations
that finally determine legal outcomes. Which among many possible extra-
legal factors (sociological, ideological, political, economic or psychological) is
determinative for adjudication can be a matter of disagreement, but
notwithstanding this disagreement, realists hold firm to the conviction that
established law is intrinsically indeterminate.”

“A distinguishing mark of Critical Legal Theory is the absence of any

central cognitive claim; its predominant theme is doubt about legal
knowledge.” 21

In the case of, Republic of the Philippines vs. Sereno, the decision ruled by the
Supreme Court in this case may have a lot of speculation. Normal citizens, even
judges and justices may have their own say or perspective on the matter. Even at
the start of the trial, ‘til the end, there are those who are in favor and not in favor of
ousting Former Chief Justice Maria Lourdes Sereno. But these opinions will never
mean anything for those who ruled on the matter. Speculations cannot be helped, it
cannot be stopped. No one can tell if the decision is just or not because either way
people will keep on questioning on what has been decided.

Robert Unger’s concept of Critical Legal Theory connects with the Republic vs.
Sereno case. Different opinions, questions, speculations and interpretations of the
law. You may even count the biases and the loopholes that are observed by many.

In one of his studies on Critical Legal Theory he also mentioned that ,

“We do not attend to theoretical strain and inconsistency because we

believe falsely that, when these aspects of thought are encountered, we can
step outside the theory wherein the conflict resides and assess it from some
“neutral” or “objective” point of view. But if we have seen to the theory–
relative core of knowledge and understanding, we recognize that this is
impossible. Any assessment of theoretical conflict must itself be theoretical;
there is no theory-independent realm for us to enter. In other words, a fact
becomes what it is for us because of the way we categorize it. How we
classify it depends on the categories available to us in the language we speak,
or in the theory we use, and on our ability to replenish the fund of categories
at our disposal. In whatever way we view the play of tradition and conscious
purpose in the manipulation of the categories, there is no direct appeal to
reality, for reality is put together by the mind.”

No one is really sure of whether the decision ruled was correct. Questions and
criticisms are still present up to this day, because of the different understandings
application and opinions of the law which may later be realized and be concluded
that, one cannot really reach a “perfectly correct” decision whether it be in the
aspect of law, or in life in itself especially when there exists some form of biases and
politics sets in to the picture.

21
http://www.jus.unitn.it/users/patterson/course/topics/materiale/ch05.pdf

24
 There may be questions on whether or not the right remedy to oust Former
Chief Justice Sereno is only through a Quo Warranto, or Impeachment. There might
be two remedies, but only one should be chosen. This were the nature of Critical
Legal Theory sets in. Some decisions and methods, or even when it comes to the
application of the law itself, Justices and Judges, may have different set of ideas, but
in the case, it has made mention and is evident that there can be changes because
of the “Changing of times”, of those entrusted with applying and coming up with a
decision. There are also instances that it can be applied before, but it cannot be
applied in the coming days or even now, it is indeterminate.

25
 People of the Philippines vs. Oares, et.al.

Criminal Cases No. C-102925-27 29 November 2018

Facts:

Evidence for the prosecution consisted of the testimonies of the following

witnesses: Sheen Concepcion, Princess Ann Alano, Ma. Luisa J. Walican, Abraham
Montano, Jr., Randy delos Santos, Saldy Delos Santos, Joselito Sarmiento Gallas,
Hiyasmin G. Barrientos, PCI Avelino U. Andaya, PCI Engr. Richard Allan Mangalip and
PCI Jocelyn Padilla Cruz.

Testimonies of the Witnesses:

Sheen Concepcion, a 14-year-old minor testified that on the evening of 16

August 2017, she saw accused Oares, Pereda asking @ Nono for the location of the
house of the person who will provide the drugs, and he pointed at the house of Kian,
upon arriving, they uttered the words “walang gagalaw, walang gagalaw.” She got
scared and went back to her house and told what she witnessed to her sister, Lala.
They went back and saw Oares and Pereda asking Nono if the one who was
handcuffed is Kian, Nono uttered “opo yan po si Kian.” Kian was frisked and found
with illegal substance. As they were leaving, accused Cruz appeared and asked the
two accused where they will bring Kian. In response, they said “ibaba na lang natin
to.” Kian was being dragged by the accused and they proceeded to the basketball
court.

Princess Ann Alano, a 17-year-old minor, recounted that on the night of the
crime, she was with Luisa Walican. She saw Kian talking with the accused Oares and
Pereda. Thereafter, she and Walican walked towards the house of the latter. When
they were about to reach the basketball court, she noticed the accused Oares and
Pereda dragging Kian and overtook them saying “tabi diyan, tabi dyan.” Oares
suddenly pushed Kian and she heard gunshots. She was scared and ran to the house
of Walican and went inside.

Ma. Luisa J. Walican, testified of the evening of the crime, she and Princess
Alano came across three police officers namely, accused Oares, Pereda and an
unidentified police officer, accompanying an “asset”. She followed the group by the
basketball court and noticed that the asset was being dragged and heard “tabi diyan,
tabi diyan.” She saw the “asset” dragged near the pigpen and Pereda fired his gun
three or four times in the direction of the “asset” while Oares also fired his gun
several times at the “asset” while Cruz stood idly by. After witnessing the shooting,
she ran towards Princess Alano and went to their neighbor. She later identified the
“asset” as Kian, and her husband told her “x x x bhie, yong nakita mong pinatay sa
labas nakita ko yong matanda kung sino yong naglagay ng baril sa kanya x x x.” She
pointed to accused Oares as the “matanda” or old man.

26
 Abraham Montano, Jr., Executive Officer of Barangay 160 testified he is in
charge of operating the CCTV cameras in the barangay. While he was on duty, Randy
Delos Santos went to the barangay and requested for CCTV footages hoping he could
find Kian. They saw at the footage a male person wearing a hood with a second male
person wearing a cap and in between was a male person being manhandled. The trio
was closely followed by a male person. However, he could not identify the persons in
the footage. Randy Delos Santos then asked him to copy the CCTV footage on his
neighbor’s cellphone. Montano later identified the footage in court.

Randy Delos Santos, unlce of Kian, his name appeared in the Certificate of Death
of Kian as the informant.

Saldy Delos Santos, father of Kian, narrated that at the time of his death, Kian
was 17 years old. The death of Kian greatly affected their family because the lost
their livelihood; his wife who is an overseas foreign worker returned back to the
country without finishing her contract; his son left his job because he was scared and;
his youngest daughter stopped her studies and was unable to graduate.

Joselito Sarmiento Gallas, he just arrived from work. He went back to Supera’s
house after finishing dinner. He saw police officers in civilian clothes conduction
Oplan Galugad in front of the house of Kian. Later they found out that Kian was
taken by the police officers. The next day he found out that Kian was a victim of
salvage.

Hiyasmin G. Barrientos, Ballistician III of the Firearms and Investigation

Laboratory Division, NBI, narrated that on 21 August 2017, the Chief of DID directed
her to conduct trajectory examination of the bullet dents or holes found at the crime
site subject to this case. She reduced her findings to a report, where after
examination, It can be deduced that the shots were made by two persons.

PCI Avlino U. Andaya, SOCO Team Leader assigned at Northern Police District
Crime Laboratory Office recalled that his office received a phone call that a shooting
incident transpired in the are of Barangay 160, Caloocan City. Upon arrival together
with other officers, they observed that the place was very dark and dirty. One of the
officers took pictures showing the victim holding a .45 caliber pistol in his left hand
and found two plastic sachets containing white crystalline substance found inside the
garter of his briefs. After the crime scene was processed, he and his team prepared a
sketch, after SOCO Report, and Inventory of Evidence Collected.

PCI Engr. Richard Allan Mangalip, forensic chemist recalled that he was ordered
per letter request to conduct a gun powder residue examination on the firearm of
accused Oares, two plastic sachets containing crystalline substance and for paraffin
examination. Upon cross-examination, he disclose that only the service pistol of PO3
Oares yielded positive result for gun powder residue. The paraffin examination on
the hands of Kian Delos Santos yielded negative results which means that he did not
fire any firearm.

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 PCI Jocelyn Padilla Cruz, Medico-Legal Officer, recounted that on the morning of
17 August 2017 she received a call from Eusebio Funeral Homes informing her that
there was a request for autopsy. She performed autopsy examinations on Kian and
prepared her findings in Medico-Legal Report. Her examination revealed the Kian
sustained two gunshot wounds to the head which caused the death of Kian, she also
signed the Certificate of Death of Kian.

According to Police Report:

According to the official police report, at around 8:45 p.m, Delos Santos tried
to flee when he noticed the police officers approaching him. He then drew his gun
and directly shot" towards the police, which prompted PO3 Arnel Oares to fire back in
self-defense, killing Delos Santos. The pistol, cartridges, and two sachets of
methamphetamine were then found in Delos Santos's possession.

Issue:

Criminal Case No. 102925

Whether or not the above-named accused are guilty of the crime of Murder
defined under Article 248 of the Revised Penal Code.

Criminal Case No. 102926

Whether or not the above-named accused are guilty of imputing the victim of
with the crime of illegal possession of firearm.

Criminal Case No. 102927

Whether or not the above-named accused are criminally liable of planting

evidence to impute the victim being involved in the sales or distribution of illegal
drugs.

Ruling:

Criminal Case No. 102925

Yes. Under Article 248 of the Revised Penal Code, the essential requisites of
murder that the prosecution must establish beyond reasonable doubt are, namely:
(1) that a person was killed; (2) that the accused killed him or her; (3) that the
killing was attended by any of the qualifying circumstances mentioned in Art. 248 of
the RPC; and (4) that the killing was not parricide or infanticide.

It is clear that (1) Kian Delos Santos was killed; (2) PO3 Oares, admitted that he
shot the victim; and (3) the killing of the victim was neither parricide nor infanticide.
Accordingly, the sole issue left for the court to resolve is whether the killing was
attended by qualifying circumstances mentioned in Article 248 of the RPC.

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 Art. 14 of the RPC defines treachery. The essence of treachery is that the attack
if deliberate and without warning, done in a swift and unexpected way, affording the
hapless, unarmed and unsuspecting victim no chance to escape. With the qualifying
circumstances present in the subject case, we have already established treachery.
The conclusion that the circumstance of abuse of superior strength is absorbed
therein necessarily follows. It is beyond cavil that treachery, as a qualifying
circumstance, absorbs the aggravating circumstance of abuse of superior strength
even though the latter was alleged in the information.

The court commiserates with our policemen who regularly thrust their lives in
zones of danger in order to maintain peace and order and acknowledges the
apprehension faced by their families whenever they go on duty. But the use of
unnecessary force or wanton violence is not justified when the fulfillment of their
duty as law enforcers can be effected otherwise. A shoot first, think later attitude can
never be countenanced in a civilized society. Never has homicide or murder been a
function of law enforcement. The public peace is never predicated on the cost of
human life.

Criminal Case No. 102926-102927

No. The evidence for the prosecution in Criminal Case No. 102926, of planting of
evidence shows that the testimony of Walican is hearsay in nature while in Criminal
Case No. 102927, two plastic sachets recovered from Kian’s body was proven to be
“shabu”, a prohibited drug. However, no other evidence whether testimonial or
documentary has been adduced by the prosecution to establish the fact that the
accused planted the firearm and prohibited drugs respectively. In criminal cases, the
prosecution has the burden of proof to establish the guilt of the accused.

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Relation to Critical Legal Theory:

Applying the ideas of Sigmund Freud,

“The idea is to tap into the unknown causes of their behavior. For Freud most
civilizations originate in violence, which gives rise to guilt. In order to alleviate
this guilt and to avoid the repetition of such violence, individuals unite and decide
to lay strict guidelines for the social organization of desire on the one hand and to
empty the place of power on the other, so that all are equal before the law, so as
to avoid anger and further violence.”22

Freud’s work is an elaboration of clinical concepts designed to alleviate psychical

suffering without trying to get people to consciously improve.

Also the concept of Mark Victor Tushnet, in can be understood from the excerpt
of Tushnet’s article that there is a link between law and economics.

“It is considered that the rule of law determines economic development in a

way that ensures: safety of subjects in law. Protection of property rights, the
realization of obligations, government control and protection of corruption. As
safety of subjects in the law, it still implies the creation of a legal system that
establishes public order.”23

The case that present these problem attract heightened media attention and the
drama of these cases reveals the enduring grip of “difference” in the public
imagination, and the genuine social and economic conflicts over what particular
differences come to mean over time. The case of Kian Delos Santos is an example of
what establishes Critical Legal Theory in the legal system. The sudden outrage
pouring from the reactions of the Filipino citizens is expressed through extreme
grievances on how the public order is misconstrued to the abuse of power. Several
witness accompanied by CCTV evidence broke the silence of the people in regards to
the rising numbers of Extra Judicial Killings happening throughout the country.

People demanded justice for the 17-year-old kid, killings in the war on drugs is
one thing, but framing and imputing an innocent is another. People had greatly
expressed their concern through the President to give attention to the casualties in
his war on drugs.

It can be sought that the voice of the people who molds the society gives great
effect on how the law should take. A mere disregard to the voice of the masses can
be beaten by a sudden spark of movement. In order to maintain public order and
public trust, the law must upheld its integrity to ensure the continuous support and
so as to avoid anger and retaliation.

22
(n.d.) retrieved from https://psychoanalysis.org.uk/our-authors-and-theorists/sigmund-freud
23
Kocevska, K., “Rule of Law – Condition For Economic Development (Republic of Macedonia)”, Vol. 11,
Issue 1 (2015) p. 185.

30
IV. Bibliography

Alan Hunt - “Critique and Law: Legal Education and Practice”

Alan Thomson, “Foreword: Critical Approaches to Law Who Needs Legal Theory”
Andrew Altman: “LEGAL REALISM, CRITICAL LEGAL STUDIES AND DWORKIN” IN
PHILOSOPHY AND PUBLIC AFFAIRS
Caudill, David S. (1991) “Freud and Critical Legal Studies: Contours of a Radical
Socio-Legal”
David Kairys, “The Political Law: A Progressive Critique”
Geo. Wash. Law Review; Tushnet, Mark V. Perspectives on Critical Legal Studies, Vol.
52 No. 2 (1984).
Gordon, Robert W., “Critical Legal Histories” (1984), Faculty Scholarship Series 1368.
Gordon, Robert W., "Critical Legal Studies as a Teaching Method" (1989). Faculty
Scholarship Series. 1358.
Guest, S., Gearey, A., Penner, J., & Morrison, W. (2004). Jurisprudence and Legal
Theory (p. 230). University of London.
Kocevska, K., “Rule of Law – Condition For Economic Development (Republic of
Macedonia)”, Vol. 11, Issue 1 (2015) p. 185.
Philawsophia: Philosophy and Theory of Philippine Law by Bernardos’
Psychoanalysis, "Indiana Law Journal: Vol. 66: Iss. 3, Article 1.”
Robert Fine & Sol Picciotto - “On Marxist Crtiques of Law”
Robert W. Gordon, “Law and Ideology” (1988) 3:1 Tikkun 14.
Roberto Unger, “KNOWLEDGE AND POLITICS”
Tushnet,M., Critical Legal Studies: A Political History, 100 Yale L.J. (1991).
Tushnet, M. V., “Critical Legal Studies: An Introduction to its Origins and
Underpinnings; Journal of Legal Education”, Vol. 36, No. 4 (December 1986), pp
505-517.
Tushnet, M. V., “Critical Legal Studies and The Rule of Law” (2016) pp. 2-4.
Sammy Adelman & Ken Foster, “Critical Legal Theory: The Power of Law”
Stanford Law Review Vol. 36, No. 1/2, Critical Legal Studies Symposium (Jan., 1984),
pp. 623-647
http://www.jus.unitn.it/users/patterson/course/topics/materiale/ch05.pdf
(n.d.) retrieved from https://psychoanalysis.org.uk/our-authors-and-
theorists/sigmund-freud
(n.d.) retrieved from https://law.stanford.edu/directory/robert-w-gordon/

31