Professor Sarah Lou Ysmael Arriola

WHAT IS A LEGAL ISSUE?

It is an unsettled legal controversy or debate in law.
It may appear as:
1. Absence of the law
2. Gap in the law
3. Conflict of laws or Supreme Court rulings
4. Current debate or issue in International law
5. Unsettled issue
6. Emerging Concept in Law
7. The law is unconstitutional or is in violation of a
treaty obligation

1. ABSENCE IN THE LAW

There is an absence in the law when there is no law

addressing such issue or enforcing such right which

either results to a human rights violation or results
to a violation of a State obligation.
For example: In spite of the fact that the Philippines
ranks #20 globally when it comes to internal
displacement within the years 2008-2012 with more
than 12.3 million people displaced from their
communities, the Philippines continues to have no
internal displacement law.

1. ABSENCE IN THE LAW

In fact the President during the 15th Congress even

vetoed the Internal Displacement Bill.

Hence, the absence of a law protecting this
vulnerable sector results in the violation of the
human rights of internally displaced persons.

2. GAP IN THE LAW

There is a gap in the law when there is a
situation that it cannot address or when the law
can be circumvented.
For example: In RA 3019 or the Anti-Graft or
Corrupt Practices Act, when a woman or man is
used to induce a government official to act
favorably for one party, it cannot be considered
as a bribe. Nevertheless, it is corruption. It is
gender-based corruption. Thus, the thesis can
propose a separate provision in RA 3019.

3. Conflict of Laws or
Supreme Court rulings
For example: Did the Supreme Court case of Neri

vs. Senate Committees overturn the rulings in Senate

vs. Ermita and Sabio vs. Gordon on executive
privilege and legislative inquiries?
For example: Does the Supreme Court have the
power to issue a TRO against the proceedings of the
Senate sitting as an impeachment Court? (see PS
Bank Resolution on the Corona dollar accounts)

3. Conflict of Laws or
Supreme Court rulings
This is an instance when two laws seem to be at
odds against each other or a recent Supreme
Court ruling seems to have overturned a
landmark decision.
For
example: RA 10158 or an Act
Decriminalizing
Vagrancy
retains
the
criminalization of prostitutes. This is not only
discriminatory against women but is also
contrary to RA 9208 or the Anti-Trafficking Act
that considers trafficked persons as victims.

4. Current debate in
International Law
It is a debate among notable publicists and gurus
in international law. It may have been a practice
of some States but was not sanctioned or even
condemned by the United Nations.
For example: Is there a right to anticipatory selfdefense?
For example: Can torture be justified under the
Ticking Bomb Theory?
For example: Is there a Right to Truth under
International Law?

5. UNSETTLED ISSUE
It is an issue that has not ripened into a justiciable

issue but it is being floated and debated in the

country. It is an issue that has sparked debates of a
magnitude that it is found in headlines and are
written about by reputable Columnists.
It can also be a pending issue before the Supreme
Court (but be careful in this area since the thesis
might become moot)

5.UNSETTLED ISSUE
For example: Is the Waiver in the SALN signed
by public officers a blanket authorization for the
Ombudsman to look into all their accounts
including dollar accounts?
For example: In a national election wherein one
of the 12 Senators not due for election dies or
gets elected to another position, can the 13th
placer in the Senatorial midterm election take
over the vacated seat?

5.UNSETTLED ISSUE
Is the Disbursement Acceleration Program (DAP)

constitutional?
Is the Enhanced Defense Cooperation Agreement
(EDCA) between the Philippines and the USA a
treaty or a simple defense agreement?

6. EMERGING CONCEPT IN
LAW
It is a newly recognized concept that needs to be

explored and its place in Philippine legal theory

needs to discussed.
For example: Targeted Killings; Right to Internet
Access as a Human Right; Yogyakarta Principles as a
source of Rights for the LGBTI; Right to Truth;
Internet as a Public Utility; Right to Rehabilitation as
a Human Right; and Electricity as a Human Right

7. THE LAW IS UNCONSTITUTIONAL OR

IS A VIOLATION OF A TREATY
OBLIGATION
When the law is alleged to be
unconstitutional, it violates either the
equal protection clause, the due process
clause, or any other provision of the
Constitution.
When the law violates a treaty obligation,
the States failure to repeal or amend the
law is a continuing violation of a treaty
obligation.

7. THE LAW IS UNCONSTITUTIONAL OR

IS A VIOLATION OF A TREATY
OBLIGATION
For example: You are challenging the
validity of the continued criminalization of
prostitutes in RA 10158 as a violation of
CEDAW.
For example: The continuing disparity in
the adultery and concubinage crimes in the
RPC is a continuing violation of our treaty
obligations under CEDAW.

7. THE LAW IS UNCONSTITUTIONAL OR IS

A VIOLATION OF A TREATY OBLIGATION
For example: Based on the Views of the CEDAW Committee on the

Karen Vertido case, the Philippine Rape Law should be amended

making the lack of consent as a means of committing rape.

For example: Article 247 of the Revised Penal Code provides: "Any

legally married person who, having surprised his spouse in the act
of committing sexual intercourse with another person, shall kill
any of them or both of them in the act of or immediately thereafter,
or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro. If he shall inflict upon them physical
injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to
parents with respect to their daughters under 18 years of age, and
their seducer, while the daughters are living with their parents."
This is a form of honor killing and this goes against the Right to Life
provision of the International Covenant on Civil and Political Rights
(ICCPR).

WHAT IS A THESIS
STATEMENT?
A thesis statement has the following elements:

1. Identifies the topic;

2. Identifies the legal issue; and
3. Indicates the primary objective of the thesis

THESIS STATEMENT
For example: Congressional insertions is the
exercise of the legislative power of Congress
provided for in Article VI, Section 24 of the
1987 Constitution. Yet, the power of Congress
to have insertions is limited by the provisions
of the law on Public Officers. This thesis aims to
explore the extent and parameters of those
limits and proposes further guidelines to
ensure accountability of legislative officers in
the performance of the constitutional duty.

THESIS STATEMENT
Conscientious objection is the objection to engaging in
a particular procedure or activity because of its
perceived incompatibility with the religious, moral
and ethical dictates of an individuals conscience.
The right to pose conscientious objections is a
human right protected by no less than the 1987
Constitution and the International Covenant on
Civil and Political Rights. Thus, this thesis draws
parameters as to the extent of conscientious
objections that can be allowed by the State and the
level of protection given by the Philippine
government.

AIDS IN FINDING YOUR LEGAL

ISSUE:
1.
2.
3.
4.

Research
Review your laws
Consult experts
Test your issues

ASSIGNMENT FOR June 26, 2014:

Identify the legal issue in any of the following topics:
1)
2)
3)
4)
5)

PDAF
Calamity Fund
DAP
Mandatory HIV AIDS testing
EDCA
*Assignment should be typewritten in a short bond
paper. It should be passed in class. Use Font 12.