The Legal Profession

Outline: - The Philippine legal system - Nature of the legal profession - Alternatives to Court Hearings - Practice of law - IBP - Challenges to legal education - Legal education in the present society - Juris doctor thesis

THE PHILIPPINE LEGAL SYSTEM The Philippine Legal System Pre-Spanish to Spanish (up to 1898) Pre-Spanish Period Prior to the arrival of the Spaniards Philippine society was divided into four classes o Nobles o Freemen o Dependents o Slaves The barangay was the unit of government o Consisted of 30 to 40 families o Ruled by a datu (chieftain) who exercised all functions of government o The datu is the one they consider to make decisions for them Customs and practices were the source of law. Usually handed down orally from generation to generation Written laws were promulgated from time to time by the chieftain and the elders. o The Maragtas Code was supposedly promulgated by Datu Sumakwel or Panay around 1200 A.D. (only a literature written by a poet) o The Code of Kalantiaw was allegedly written in 1433 A.D. by Kalantiaw, the 3rd Chief of Panay Kalantiaw was derived from two words, which means great chief The Muslim influence came from Indonesia. They had their own written social rules and regulations based on the precepts of the Koran. The Mindanao Moros had the Liwanan or the Laws of Maguindanao
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o Selections from old Arabic Law o Translated and compiled for the guidance of the Mindanao datus, judges, and panditas The Code of Sulu o A guide for the proper execution of the duties of office in accordance with the law and rules of the State. o Promulgated with the general consent of all datus, panglima, and subordinate officers of the State.

Spanish Period Magellan discovered the Philippines on March 16, 1521. Spanish rule was established in 1565. When the Spaniards conquered the Philippines, they did not succeed in suppressing the Muslims o Muslim legal system persists to this day The country was divided into provinces based on linguistic considerations for administrative purposes. o Barangays were gathered into pueblos o The cabeza de barangay were converted by the gobernadorcillo or captain Most of the political positions are held by the Spaniards Since, we have different languages, it refrains us to talk in some territories. This is the start of the colonial mentality. Two kinds of laws were enforced by Spain in the Philippines: o Laws of Spain governing Spanish citizens o Those enacted to govern the colonies On March 22, 1897, Andres Bonifacio called for an assembly of Magdalo and Magdiwang leaders to the Tejeros Convention. o The idea of the Tejeros Convention is to make a constitution After three hundred years of being under the Spanish colonizers, we have a lot of issues: o Revolutionary movement started The Biak na Bato Constitution was approved on November 1-2, 1897 o Copied from the Cuban Constitution The Biak-na-Bato Republic ended on 15 December 1897, with the signing the truce agreement to suspend hostilities.

Malolos Republic and American Period (1898-1941) Aguinaldo returned to Cavite after a self-imposed exile in HK to establish a dictatorial government proclaimed on May 24, 1898 On June 12, 1898, the revolutionary government was established, with Aguinaldo as President. They approved the Malolos Constitution on November 29, 1898. o It was the first republican constitution in Asia influenced by the Cartilla o Separation of Church and State o Unicameral legislature called the Assembly of Representatives o Executive power vested in the President who was elected by an absolute majority of the assembly and special representatives. No VP. o Judicial power in one Supreme Court and in other courts to be created by law. Treaty of Spain transferred Spanish sovereignty over the Philippines to the United States. Philippine-American War began on February 4, 1899 o Schurman Commission sent on March 4, 1899 o Taft Commission on March 13, 1900 (from military to civil) Presidents Instructions of April 7, 1900 o To transform the military into a civil government Spooner Amendment of March 2, 1901 o Gave the President authority to establish a truly civil government o Established a Supreme Court, CFIs and justice of the peace courts The Philippine Bill (Act of Congress, July 1, 1902) o Provided for the calling of a popular assembly, which was convened on October 16, 1907. It chose 2 resident commissioners to the U.S. (commissioners serve as witness, no voting powers) o Together with the Philippine Commission, the Philippine Assembly formed the Philippine Legislature o The U.S. Congress expressly announced that the Constitution and ByLaws of the U.S. were not in force in the Philippines. o The civil governor, vice governor, heads of executive departments, and members of the Philippine Commission were appointed by the President, with the consent of the U.S. Senate o Judicial power was vested in the SC, in the CFIs, and in the municipal courts. The CJ and Associate Justices of the SC were appointed by the President, with the advice and consent of the Senate. The judges of the CFI were appointed by the civil governor, with the advice and consent of the Philippine Commission.
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o Jones Law, or Philippine Autonomy Act (Act of Congress, August 29, 1916) Superseded the Spooner Amendment and Philippine Bill as the chief organic act of the Philippines Resembled a constitution in form and content (It looks like a Constitution since it has preamble, etc.) o The Tydings-McDuffie law of 1934 a.k.a. (not done copying) o The 1935 Constitution The proposed Constitution was submitted to President (not done copying) Commonwealth and Japanese Period (1941-1946) o The Commonwealth Government Elections were held on November 15, 1935, with Manuel L. Quezon as President and Sergio Osmena as Vice President. The first law to the passed by the First National Assembly was the National Defense Act under which the Philippine National Army was created. The Constitution was again amended in 1945 with the inclusion of parity rights (parity means fair; more equal than equal; allowing the U.S. to export goods as many as they want, but we did not enjoy the same right; no tax on their side) On January 3, 1942, the Commander-in-Chief of the Japanese Imperial Forces proclaimed martial law. o The Japanese occupation Order No. 1 organized the Philippine Executive Commission with Jorge Vargas appointed as Chairman. Its main functions were to increase food production (for Japanese troops as well as Filipino citizens) to aid in reconstruction damaged infrastructure and to induce the guerillas to surrender. President Quezon was flown to Australia in March, 1942. The Preparatory Commission for Philippine Independence headed by Jose P. Laurel drafted the transitory 1943 Constitution. On October 14, 1943, the (Second) Republic of the Philippines was inaugurated. After the ceremonies, the Philippine Government signed a secret Pact of Alliance with Japan, allowing Japanese to station troops in the country and to exploit the economy.

3rd Philippine Republic and Martial Law (1946-1986) On February 27, 1945, General MacArthur turned over Malacanang Palace to President Osmena. Later, President Roxas granted amnesty to all suspected political, economic and cultural collaborators. The Philippine Trade Act of 1946 (aka the Bell Trade Act) was passed by the U.S. Congress on April 30, 1946. o Allowed entry of Philippine articles into the U.S. free of ordinary customs duties until July 3, 1954. Philippine Independence was proclaimed on July 4, 1946. o A corresponding executive agreement was signed U.S. Commissioner McNutt and President Roxas. On August 21, 1971, the Liberal Party rally at Plaza Miranda was bombed. o President Marcos suspended the writ of habeas corpus o On September 21, 1972, President Marcos issued Proclamation No. 1081, placing the entire Philippines under Martial Law o He submitted the proposed Constitution for ratification. On January 17, 1973, the Chief Justice received a copy of Proclamation No. 1102 signed by President Marcos, certifying and proclaiming that the Constitution had been ratified by an overwhelming majority of all votes cast by the members of all the Citizens Assemblies throughout the Philippines The consensus of the Supreme Court affirmed the transitory provisions of the 1973 Constitution, combining in the President all the powers of the executive and legislative branches of government. Military tribunals were established. On October 16-17, 1976, the people ratified (not done copying)

EDSA Revolution (1986-present) On August 21, 1983, Ninoy Aquino was shot to death at the Manila International Airport. Ninoys widow, Corazon Aquino, ran for President at the snap elections held on February 7, 1986. On February 15, 1986, the Batasang Pambansa proclaimed Marcos as President. EDSA Revolution On February 25, 1986, Corazon Aquino was proclaimed the first woman president. 1986 Freedom Constitution allowed Aquino to be declared as President. (If the sovereign speaks loudly, no need for a document to be presented) Cory Aquinos Proclamation No. 1 (not done copying) She abolished the Batasang Pambansa (not done copying)

The 1987 Constitution took effect on February 2, 1987, after an overwhelming affirmative vote. It framed a stronger and more detailed Bill of Rights and entranced checks and balances against abuse of governmental powers.

Current legal system The most important law is the organic law There are also statutes, which are enactments of the Legislative. Administrative acts, orders, and regulations of the President regarding the organization or mode of operation of the government are made via Executive Orders. Everything is assessed according to the Constitution Treaties or international agreements are not valid and effective unless concurred in by at least 2/3 of all members of the Senate Administrative rules and regulations issued by heads of Departments of other agencies of government are issued for the (not done copying) Decisions of the Supreme Court bind the lower courts and are likewise a source of law. Decisions of the Court of Appeals are merely persuasive on lower courts. They may be cited in cases where there are on Supreme Court decisions in point.

Next Meeting: Nature of the Legal Profession Recitation In re Max Shoop November 29, 1920 Lansang v. Garcia G.R. No. L-33964 December 11, 1971

NATURE OF THE LEGAL PROFESSION Three attributes of a profession 1. Learning 2. Organization 3. Service

ALTERNATIVES TO COURT HEARINGS Alternative Disputes Resolution 1. Pre-trial 2. Katarungang Pambarangay 3. Mediation 4. Arbitration 1. Pre-trial conference/hearing Rule 18 of the Rules of Court (for civil cases) Rule 118 of the Rules of Court (for criminal cases) Difference of pretrial: Civil - No arraignment - What is contained in the brief? Rule 18: Everything that was taken up in the pre-trial Plaintiff dismissal of the action Defendant grounds to declare him in default and to authorize the plaintiff to present evidence ex parte. Criminal Happens after arraignment Rule 118: Only those that they have agreed upon 1983 required to petty crimes 1985 required to all crimes, regardless of nature Plea bargaining is allowed to pre-trial, except for cases under the Dangerous Drugs Act, where the imposable penalty is reclusion perpetua to death. To protect the rights of the accused to agreement or admission made or rendered into during pre-trial shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel.
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2. Katarungang Pambarangay PD 1508 RA 7160 (Local Government Code) later pronouncement

Applicability: within the same city or municipality not necessarily from within the same barangay Lupon Tagapamayapa Composition: Brgy. Captain as Chairman 10-20 members (appointed not elected) Age of majority Who appoints? Brgy. Captain Sangguniang Barangay has no authority over disputes Non-appearance of parties: They are compelled. Section 409 (Venue where disputes are settled) Section 408D (amicable settlement) Subject matter except: If the one party is the government If the one party is a government employee or public official on his/her official functions Offenses for which the law prescribes a maximum penalty of imprisonment or a fine exceeding P5,000.00 Offenses where there is no private offended party Where the dispute involves real properties located in different cities or minicipalities unless the parties agree to submit their differences to amicable settlement by an appropriate lupon. When the parties reside in barangays of different cities or municipalities except where such barangay unit adjoin each other and the parties agree to submit their differences to amicable settlement by an appropriate lupon. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the secretary of Justice. Lupon ng Tagapagkasundo Composition: 3 members who will decide on the case.

3. Mediation Court annex mediation Its the judge who will decide if the parties will got to mediation Mediation happens in the appellate court. It must still undergo negotiation Cannot be subject to mediation (same in arbitration): Grounds for legal separation
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Criminal liability Homicide Annulment Labor union/labor disputes Legal status Habeas corpus petitions Process: P500 fee Non-appearance of parties and their lawyers will result in Complainant: case is adjourned Respondant: presentation of evidence (also in pre-trial) Not compelled to agree with the decision

4. Arbitration Arbitral reward compelling Arbitrators need not be judges or lawyers Projects: Case of contracts If involves highly specialized contracts CIAC Construction Industry Arbitration Commission Comparison of Alternatives to Court Hearings
Alternatives 1. 2. 3. Pre-trial Katarungang Pambarangay Mediation Compelling Applicability to given cases Case Exemptions Third Party who settles disputes

No No No
Grounds for legal separation Criminal liability Homicide Annulment Labor union/labor disputes Legal status Habeas corpus petitions

Judge Lupon Mediator

4.

Arbitration

Yes. In the Cases of contracts presence of an arbitral Highly specialized reward crimes

Same to mediation

Arbitrator need not be a judge or a lawyer

THE PRACTICE OF LAW, INCLUDING ADMISSION TO PRACTICE AND BAR EXAM Practice of law o Cayetano vs. Monsod (liberal practice of law) Admission to practice o Two requirements: pass the bar exam and oath taking (passing the bar without taking the oath, still one cannot practice law) Bar Exam o Must pass the bar examinations given every October yearly

THE INTEGRATED BAR OF THE PHILIPPINES AND THE MCLE Integrated Bar is a private organization because lawyers are not employees of the government. Article VIII, Sec. 5 Rule 138, Sections 5,6 IBP membership is required. Voluntary termination of membership results to strickening of lawyers name from the Roll of Attorneys. Duties of an Atty (Purpose of integration) MCLE topics: 1. Technology and the law 2. Law and economics 3. Environment law 4. International law processes 5. Transnational business transaction 6. Law reforms 7. Law as a means of social control Two articles included: Balisacan, Ryan Hartzel C. (December 2006). Towards recognizing and accommodating differentiation within the legal profession: a critique of the code of professional responsibilitys treatment of the non-litigation pratice of law. Philippine Law Journal, 81: 322-344. Highlights: o Sociological foundation of the legal profession (synonymous with the three attributes of the legal profession) Attributes Social status (Weber) learning Social power (Marx) public service Social organization (Parsons) organization o The CPR shall be the constitution of all lawyers. All rules and regulations to be issued in relation to specialized practice of law must be in accordance with the CPR.

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Chang-Gonzaga, Jose Victor V. Lawyering @ Century 21: globalization, ICT and the legal profession. In Coquia, p.349. Highlights: o Nature of practice of law From simple membership to the bar, appearances before the Patent Office and representation of clients and others persons, it becomes liberal to any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. o Profession vs. Trade o Four possible modes of supplying services internationally o Supervision of legal services o The issue of professional responsibility o Liberalizing the legal profession

60 pts. 40 pts Essay (8 items) 20 pts MCQ (10 items) Thursday, October 18 5:30-7:30 p.m.

***Also in the outline but not included in the final exam: CHALLENGES TO LEGAL EDUCATION IN THE PHILIPPINES LEGAL EDUCATION IN THE PRESENT SOCIETY THE JURIS DOCTOR THESIS

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