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Let's start with section 2. Section 2, has been the subject of seeming endless debate with
the bar. This is the provision that says that laws should take effect after 15 days following
the completion of publication in the Official Gazette, (sic) newspaper of general circulation,
unless otherwise provided. The last phrase there unless otherwise provided, has been the
subject of perinneal debates whether this clause refers to the need for publication of
whether this clause unless otherwise provided refers only to the date of the effectivity of
the law. If this clause refers to the need for publication, the interpretation there is the
publication will be dispensed with if the law itself provides so. But if this clause unless
otherwise provided refers to the date of effectivity then the interpretation would be that
publication is indispensible but the law making body may provide that it would be effective
either shorter than 15 days or longer than 15 days following publication. But in any case,
publication is necessary. And with the absence of a specific date of effectivity after
publication, 15 days apply. What is the correct interpretation of Section 2? This is
answered finally in the case of Tanada vs Tuvera. This case traces its umbilical cord to the
political atmosphere of the Philippines during the Marcos (sic). During the regime of
Ferdinand Marcos, various presidential issuances were kept in the dark. Citizens were
prosecuted for violating laws which were not made known to the public. After the EDSA
revolution and the Cory government took over during which time democracy was
supposed to be restored. A group of militant lawyers headed by Lorenzo Tanada, member
of the famous Mabini, went to court suing the government to comply the government to
publish various Presidential Issuances issued during the time of Ferdinand Marcos. The
bone of the contention in this case is the issue of whether or not a law can be valid without
publication. Bringing to forth, Section 2 of the Civil Code of the Philippines. The Supreme
Court in Tanada vs Tuvera made a definitive categorical and absolute rule that for a law to
be valid, publication is indispensible. The reason being that due process demands that
before a citizen can be expected to comply a law and before the government can impose
penalties for non-compliance with the law, that law has to be published. It would the heart
of absurdity to exact compliance and impose penalty to non-compliance for violating a law
which is not made known to the subject which it has supposed to govern. Due process
demands for it. So the Supreme Court said that laws must come to the clear light of the
sun instead of sulking with the shadows with the deep dark sectors. That was how the
Supreme Court articulated Tanada vs Tuvera. This ruling stabilizes everthing until this
recent case, Philippine Veterans Bank, that came into being. Years after Tanada, the
Supreme Court came back with a ruling in the Philippine Veterans Bank vs Judge Vega
which somehow stirs the already settled pool in the case of Tanada. Now, letswalk
through the case of Philippine Veterans Bank. This involved the liquidation of Philippine
Veterans Bank. At that time, the Bank was in the brink of closure. Liquidation is that
process where the business of the corporation, this is a process leading to the eventual
closure of the business of the corporation. Where the assets are settled, the obligations
are settled and the assets are distributed to the stock holders whatever remains after
settling all the obligations. So, this is prelude of the ceasation of the operation of the
business. Towards its end, a liqudation proceeding were commenced before the Regional
Trial Court presided (sic). However, during the pendency of the liquidation proceedings, a
new law was passed. RA 7169. This law mandates the rehabilitation of Philippine
Veterans Bank which is the very same corporation or bank subject of the liquidation
proceedings. Now, while liquidation contemplates the cessation of the corporation,
rehabilitation on the other hand requires the restoration of business. So these two
proceedings are diametrically opposed to each other. But despite the effectivity of RA
7169, judge Vega continued to assume jurisdiction over the liquidation proceedings and
continued to issue orders involving acts of liquidation which is inconsistent with the
purpose of RA 7169. And so some parties questioned the actuations of the judge in the
court. Then the primary issue is whether or not Judge Vega has jurisdiction to continue
acting as liquidation court in view of the enactment of RA 7169. Let's set aside for a
moment this issue as obviously we are not interested with this issue. I'm more interested in
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the part of the decision which touches on the issue of publication. (sic) Some of the parties
in this case was that RA 7169 took effect on March 10 1992. 15 days following its
publication on February 24 1992. So it was the issue as to the specific date of effectivity
was raised. According to the Central Bank and the liquidator, March 10 was the effectivity.
How did the Supreme Court took up this decision? The Supreme Court addressed this
decision in two fronts. Number one, which is the main justification is this: according to the
Supreme Court, while it is a general rule that publication is necessary for the validity of the
law, the law making body, Congress for example, has the authority to provide for
exception as when the law itself provide that it be effective immediately upon approval.
Looking at the provision of RA 7169 particularly Section 10 thereof: it says there that this
act shall take effect immediately upon approval. The law was approved by President
Aquino, January 2, 1992 and the Supreme Court said: Contary to the claim of the Central
Bank that it took effect on March 10, 1992, that law took effect on January 2, 1992, the day
it was signed by President Aquino into law pursuant to Section 2. Second justification
which is more of an alternative reasoning of the Supreme Court, the Supreme Court went
on to say that assuming that publication is necessary so obviously in its first justification
publication is not necessary because an exception was provided by Congress by stating in
Section 10 that it would be effective immediately upon approval. But according to (sic)
considering that publication is still necessary to validity, it is a fact that RA 7169 was
indeed published on February 24, 1992 and so contrary to the claim of the Central Bank
and the liquidator that it took effect on March 10, 1992. When in fact it took effect on
February 24, 1992, the day it was published implying that when Section 10 states it shall
take effect immediately upon approval that approval refers to publication. Obviously,
given the reasoning of the Supreme Court in this case, particulary on the first justification.
Obviously, this is in conflict with the categorical language of Tanada vs Tuvera. Because in
Tanada vs Tuvera, there was no exception. The Supreme Court said, made a definitive
ruling that publication is indispensible, the word is not only necessary but indespensible
and nowhere in the book and cases of the Tuvera ruling did it say that Congress or the law
making body may provide for exception. Or that publication may be dispensed with. If you
look at Tanada, the ruling, the requirement for publication is really absolute. And obviously,
it should be absolute. Given the reason behind the need for publication is due process,
that is constitutional in origin. So, the question now is which ruling is controlling?
Remember, the Philippine Veteran Bank came later, and in Statutory Construction or in
law, normally, in case of conflict between two decisions of the Supreme Court, the later
decision prevails. Because the later decision contains the recent the more recent
sentiments of the court. And when the court renders a decision in the later case, it is to be
pressumed that the court took note of the previous ruling on the same issue. So when the
Supreme Court rendered the ruling in Philippine Veterans Bank, it is logical to assume that
they took note of the ruling in Tanada and when they came up with the ruling inconsistent
with Tanada, there is sense in the argument that the Supreme Court could have
superceded Tanada. (sic) I have searched in vain for an answer but I can not find any
ruling that clarifies this inconsistent position of the Supreme Court. But my personal take
on this is, that between this two conflicting ruling. I would say that the Tanada is and
should be the controlling one. And this is not without basis. Now let me cite you my
justification for this position. First, while Philippine Veterans Bank came up years after
Tanada, we should not lose sight of the fact that under Article 8, Section 4, Paragraph 3 of
the Philippine Constitution the provision govern the judiciary. There is a provision there
that stays in fact that no judgement or principle of law laid down by the Supreme Court in a
decision rendered either in en banc or division maybe modified or reversed except by
Supreme Court sitting en banc. In other words, if the Supreme Court decides an issue
enunciates a doctrine or principle of law in one case, and that case is decided either in en
banc, meaning the whole complement of 15 justices deciding on the issue or in the case or
in division because the Supreme Court may decide cases in division of 5. They will group
into 3, its group will consist of 5 members. The decision rendered by the division consisting
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of 5 members is as good as the decision of the entire court consisting of 15 justices. Thats
how they do their work there. Under this provision in the Constitution, if a doctrine of law
or a principle of law is enuciated by the Supreme Court via a case whether that decision is
decided by en banc or in division. That ruling of doctrine can only modified in reverse by
subsequent ruling only that ruling is decided or rendered by the Supreme Court en banc.
But if you look at Tanada, tanada was decided by the Supreme Court en banc but the
Philippine Veterans Bank was decided by the Supreme Court in division. So Tanada
enunciated the doctrine that publication is indispensible. The ruling in Philippine Veterans
Bank to the effect that while it is necessary, the law making body may provide an
exception. On this court, the ruling in Philippine Veterans Bank could not have modified
much less reversed the Tanada ruling. That is the first justification. Second, we have a
principle in law which says is that a similar issue involved in one case, if this is raised in
another case, subsequent case, this issue should be resolved in the same manner as it
was resolved in the first case. So called stare decisis. To promote consistency of judicial
decisions, it is not uncommon that cases involves the same issues. So, this (sic) should
be resolved similarly. Even if different justices. So, if a doctrine is laid out in the previous
case, and the doctrine relates to a particular issue and that issue is raised in a subsequent
case. The party involved in the subsequent case may invoke the ruling in the previous
case as stare decisis. Now, you can argue with the court that this issue now facing us
today was already raised before in the case of (sic) by virtue of the principle of stare
decisis, the court can not decide this case otherwise. The court should observe the same
decision laid down by the same case. It should be consistent, that's stare decisis. Opposite
to the principle of stare decisis, is the concept of obiter dictum. Obiter dictum, literally
means side remarks of the court. This is a part of the decision, a statement made by the
court, in their decision which is not necessary at all for the resolution of the issue raised
before the court. So, may it be part of the decision because it is stated there on the
decision, but if you look at the issue, it is not actually necessary for the resolution of that
issue. That's obiter dictum. For purposes of stare decisis, obiter dictum does not create
precedent. So, if a statement is made by the court in one page but that only consists of a
obiter dictum, the party in the subsequent case may not invoke that statement for opinion
of the court. In this case, stare decisis does not apply and whatever is stated in the
previous decision which is only obiter dictum does not create an authority that entitles the
party of a subsequent case because it does not create a precedent. Applying this two
principles in the case of Philippine Veterans Bank, I would say that the statement made by
the court in the Philippine Veterans Bank to the effect that as a rule publication is required
but the law making body may provide for an exception is only an obiter dictum. Why?
First, the issue on the validity of RA 7169 on the ground of non-publication was never
raised in the case. There were nobody that raised the issue of the validity of RA 7169 on
the basis of lack of publication. In fact, it was established in the case that in fact that law
was published. So, it was legally impossible for the issue of validity vis a vis the
requirement of publication could have been raised in the case because there was no issue
as the law itself was published. And yet the Supreme Court went on to discuss or to state
the rule that publication is decided by Congress or that they may provide exception. It was
entirely unnecessary for the Supreme Court to dwell on this matter because it was never
raised in the case. So, it was merely an obiter dictum that does not carry a precedent.
Third, as between Tanada and that statement, the obiter dictum in Philippine Veterans
Bank, the Tanada ruling is more in accord with law. The reason behind the need for
publication is due process, constitutional in origin. Can not be dispensed with. If you look
at the rationally for the need of publication, Tanada is more consistent with the wisdom of
law. So on this three points, I am comfortable to say that the Tanada is the more
controlling. Take note that, as required in Tanada, the requirement in publication as
contemplated under Section 2 extends or applies to all kind of laws whether the law is of
general application or private. Whether the law is penal, not penile, or non-penal in nature.
Or if the law is national in scope or local in scope. No distinction, neither is there
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qualification. If it qualifies under the term law, it should be published as requirement for
validity. So the case that you may have encountered in the reference books that I have
assigned. It is said there that publication is only required if it is penal in nature, that is no
longer controlling. Because in Tanada, the Supreme Court is categorical that even if the
law is not penal in nature publication is required. Question. When Section 2 (27:00).
Mc Alaine Ligan
Whether the law is national in scope or local in scope. No distinction, neither is there
qualification. p
If it qualifies under the term law, it should be published as requirement for validity. So, the
case that you may have encountered in the ----------- which states there that publication is
only required if the law is penal in nature, that's no longer controlling, because in Taada,
the Supreme Court is categorical that even if the law is not penal in nature, publication is
required.
Question! When section 2 speaks of laws, what specifically are covered? Taada again
clarifies what are the so called laws that need to be published.
1.) Statutes- these are laws promulgated by Congress, Senate, and the House of the
Representatives - Statutes, Republic Acts
2.) Presidential Issuances- these are laws promulgated by the Executive Department
particularly by the President in the exercise of the President's rule-making power.
Common forms of Presidential Issuances include Executive Orders, Presidential Decrees
(PD's), Presidential Proclamations, Presidential Memoranda, and Presidential Circulars.
So laws promulgated by the President fall under Section 2, and therefore require
publication.
3.) Rules and Regulation- promulgated by Administrative bodies. Take note that the power
to promulgate rules or laws is not the monopoly of the Executive branch or the legislative
branch. We have the so-called administrative bodies, which under certain conditions, are
also authorized to promulgate rules and regulations which fall under the categoric act, a
law contemplated under Section 2 and therefore, ptublication is required. But like a law
which is passed by the Congress to the President, the power of the adminsitrative bodies
to promulgate rules and regulations is limited in the sense that they can only be
promulgated in the exercise of a validly delegated authority. Meaning, it is not inherent. It is
merrely delegated by the law or by the delegating law. And second, the purpose of the rule
or regulation is to implement an already existing law. So a delegated authority for the
purpose of carrying out the provisions of an existing law. Whatever rules and regulations
promulgated by the administrative bodies for the purpose of implementing the provisions of
an existing law, are in themselves, laws, which need to be published in compliance with
Section 2.
This is illustrtated in the case of PITC versus Judge Zosimo Angeles. Philippine
International Trading Corporation is a government-owned and controlled corporation
created under certain Presidential Decree during the time of Ferdinand Marcos.
Subsequently, a Letter of Instruction was passed vesting particfular power in favor of PITC.
Some of these powers include the power or the authority to promulgate rules for the
purpose of governing trading activities including importation and exportation of goods,
importation from abroad, the exportation to outside of the Philippines. This power was
specifically vested in PITC by virtue of the law, the Presidential Decree and the Letter of
Instruction 444. During the administration of Pres. Corazon Aquino, she issued an
Executive Order which partly amended the previous PD and the Letter of Instruction 444.
This Executive Order No. 133 also dealing with authority of PITC on matters of importation
and exportation of the goods. Pursuant to these three (3) delegating authority, the
Presidential Decree, Letter of Instruction 444, and Executive Order 133. PITC promulgated
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an administrative order requiring every importer of goods from the people of Republic of
China to submit a viable export program of Philippine products to China. The purpose
being is to ensure the give and take of trading transactions. If one intends to import goods
from China, that importer should be ready to export goods or Philippine products to China
at the ration of 1:1. So if the importer tends to import goods from China worth 1 Million,
that same importer as a condition for import permit has to submit a viable export program
of Philippine products worth 1 Million to China. That's the essence of that administrative
order in question promulgated by PITC. For failure? to comply with this requirement of
export program of Philippine products to China, two (2) importers, Remington Industrial
Sales Corporation and Firestone Ceramic Inc., were denied of their application for import
privileges?. This prompted them to go to court to question the validity of the administrative
order issued by the PITC. They challenged the validity of this administrative order on two
(2) grounds.
1. They argue that PITC had no authority to issue or promulgate the administrative order in
question. 2. The administrative order in question is invalid because it was not published as
prescribed under Section 2 of the Civil Law.
How Did the Supreme Court resolved these two (2) issues.
1. The supreme Court said that the PITC being an administrative body is duly authorized
to promulgate the administrative order in question pursuant to a validly delegated authority,
referring to the Presidential Decree, the Letter of Instruction 444 and the Executive Order
133, which delegated authority to PITC to promulgate rules and regulations necessary for
the implementation or to carry to effect the purpose of these laws particularly on matters
governing import and exporting. So in the first ground, the Supreme Court uphold in favor
of PITC, that adminsitrative order was issued pursuant to a validly delegated authority as
ancillary? of legisltation.
2.The Supreme Court said, while we uphold the authority of PITC tgo promulgate the
questioned administrative order, it doesn't follow that the questioned administrative order is
valid. In fact the Supreme Court said, we declared that this administrative order is invalid
for lack of publication.
This case illustrates the rule? that the law contemplated under Section 2 of the Civil Code
includes rules and regulations promulgated by administrative bodies. So, it does not only
refer to laws promulgated by the Congress or by the President.
But not all issuances promulgated by administrative bodies fall under law and therefore not
all issuances require publication. This is illsutrated in the case of Victoria Millings versus
Social Security Commission. This case involves the SSS law. Before this case came
about, the law then? enforced was the SSS law certain Presidential Decree issued by
President ????????[36:00], creating the so-called social security partner. Under the
mechanics of this law, the employers and the employees are required to remit to the social
security program certain percentage of the employee's compensation as contribution to
the SSS fund. All these constributions will be pulled? together to [36:48] the fund for the
benefir of all members which could come in the form of loans, [36:54], hospitalization,
[36:58]. Under this law, the employer is required to remit three and one-half (3 1/2%)
percent of the employee's compensation, while employees were required to remit to the
system 2 1/2% of the compensation. The law itself defines what comprises compensation.
It says there that compensation refers to all remuneration for employment except bonuses
and overtime pay. So, what was used as basis for the computation of the 3 1/2 and 2 1/2%
of the compensation excludes any amount received by the employee in the form of
bonuses or overtime pay. What was computed then waS only the basic pay. Subsequently,
this law was amended, and in the amendatory law, the definition of compensation was
changed. In the amendatory law, compensation was not defined or was now defined as all
remuneration for employment but silent? now? as to whether bonuses and overtime pay
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are exluded. Because in the previous law, the exclusion of bonuses and overtime pay was
expressly stated. But in the new law, silent. This poses confusion as to the interpretation if
the bonuses and overtime pay sdhould be included or should not be indluded. To avoid
this consfusion, SSS came out with this administrative circular in question, which
mandates or which clarifies that so far as SSS is concerned, their interpretation of this
amendment is that in the computation of the compensation, bonuses and overtime pay
shall now be included. So with this interpretation, obviusly, the contribution of the employer
and the employees would be bigger because the computation of the 3 1/2 and 2 1/2 shall
not only be based on the basic pay, but now includes the bonuses and overtime pay. So,
naturally,as an employer, Victoria's Milling ??[39:43] prejudiced by this administrative
circular. ?????[39:50) Victorias Milling went to court questioning the validity of this
administrative circular.
One of the argumentation was this administrative circular is invalid because it was not
published. The Supereme Court rebut Vicotrias Milling. Supreme Court said, An
administrative body, can validly promulgate rules and regulations but we should distinguish
the situation where an administrative body promulgates the rule or regulation for the
purpose of implementing an existing law from a situation where it issues a rule or
regulation which simply interprets a law. In the first, when an administrative body
promulgates a rule or regulation for the purpose of implementing an existing law, the rule
and regulation promulgated by the administrative body partakes of the nature of the law,
and therefore should comply with Section 2, need for publication. Why! You know that in
law, either promulgated by the President or the COngress is usually comes? in general
terms. What is only expressed in the law is the policy involved, the coverage, remedies,
the sanctgions, just the general provisions, but the details, the specific details necessary
for implementation cannot be found in the law itself, but these details are left to the
adminstrative bodies entrusted with the imnplementation of the law. You will note that
almost always, the law stipulates a provisions there which states that this administrative
body is mandated to promulgate rules and regulations for the purpose of carryng out the
purposes or the intention of the law. THis is a portion of the law which delegates their
power to promulgate rules and regulations and pursuant to the delegated power, an
administrative body can validly promulgate rules and regulations whcih now contain the
details not otherwise found in the law itself, and it's because this details are not found in
the law itself, these details have to be published so that people will know. Otherwise,
without these details be published, they cannot be expected to comply with the law even
the general tenor of the law. SO, these rules and regulations containing the detail for the
purpose of implementation, are themselves, proceeded? law for purposes of security? It's
diffrent when the mode of reguation is not for the purpose of implementing the law, which
does not contain the details, missing in the law itself. When a rule or regulation simply
interprets the law, it does not change the law at all. It does not expand the law at all
because it simply explains the interpretation of the administrative body on on how that law
should b construed. ANd since the new law does not contain the details not otherwise
found in the law itself, this rule or regulation, which is only interpretative in nature does not
fall under the category of a law contemplated under SEction 2, and therefore, no need for
publication.
Falling under this category is the administrative circular interpreting the amendatory law
because it's obvious in the law that overtime pay and bonuses were not exempted from
the term compensation.
So, that's it. That's the exception in the Victorias Milling, no need for publication.
4.) The law contemplated under Section 2 also includes the Local Law or commonly
known as ordinances. So, when section 2 speaks of law, it includes ordinance. THerefore,
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publication is required for its validity.. But take note, that unlike section 2, which specifies
the mode and method of publication which is official gazette or with the new amendment
now under Executive Order 200, newspaper of general circulation in the Philippines. When
it comes to ordinances or resolution, the mode of publication is not governed by the two (2)
but is governed by the provisions of the Local Government Code, Republic Act 7160,
particularly Article 59/SEction 59. Generally, for purposes ofvalidity, an ordinance or
resolution should be published not in the official gazette or newspaper of general
circulation.????? [45:46] 15 days from publication because under the Local Government
Code, ordinances or resolutions shall take effect ten (10) days after its publication. The
mode of publication is the copy of the resolution or ordinance is posted at the bulletin
board of the capitol building or the municipal, city, or barangay hall, and posted at 2
conspicuous places at the local government unit conceerned. So, bulletin board and 2
conspicuous places. Usually, in public market, schools, or church.
So, local ordinances need to be oublished but publication is that prescribed by the Local
Government Code.
5.) Judicial decisions. Take note that under Article 8 of the civil code, judicial decisions
form part of the legal system of the Philippines, but they are not strictly? laws, but they
have the force and effect of a law. So, question, is there a need for publication before a
judicial decisions become binding and valid! When it is not strictly law uner Section 2, but
under Section 8, it partakes of the nature of a law. Supreme Court answered this in the
case of Felisa de Roy versus the Court of Appeals.
Felisa de Roy and Revillo Ramos were the owners of a burn out building with a firewall on
the verge of collapse, despite reminders or written demands to the nearby residents,
particularly a tailoring shop and its owners and the family refuse to stay away from the
delapited building. As fate would have it, the firewall eventually collapsed resulting in the
destruction of the tailoring shop injuring the persons and the death of one. The case for
damages for injuries prospired against de Roy and Mr. Ramos. After trial, the court found
for the plaintiffs and judged de Roy and Ramos liable for damages. They appealed to the
Court of Appeals and the Court of Appeals sustained and upheld the decision of the
Regional Trial Court. On the 15th day that de Roy received the copy of the decision of the
Court of Appeals, instead of filing for a motion for reconsideration or an appeal directly to
the Supreme Court, de Roy and Company filed a motion for extension of time to file motion
for reconsideration. Which was denied by the Court of Appeals invoking the ruling of the
Supreme Court rendered in the case of Habaluyas vs Japson enterprises. In this case, the
Supreme Court made a categorial ruling that the filing of a motion for extension of time to
file motion for reconsideration is not allowed. As so the Court of Appeals denied the motion
for extension. Dissatisfied with the decision, de Roy and company went all the way to the
Supreme Court. In trying to get the Supreme Court to reverse the decision of the Court of
Appeals, de Roy and company argued that it was error for the Court of Appeals to rely on
the decision of the Supreme Court in the case of Habaluyas vs Japson enterprises
because that decision in habaluyas is not valid and binding because when the time the
Court of Appeals denied their motion for extention of time to file motion for reconsideration
that decision on Habaluyas was not published in the Official Gazette. How did the
Supreme Court resolve this issue?
The Supereme Court categorically ruled out that there is no law that require decision of the
supereme court be published in the official gazette. Question! Does it mean that decisions
of the supreme court need not to be published at all or it needs to be published but the
publication shall need to be in the official gazette. These are two possible interpretation of
the decision. THe more logical interpretations is unlike laws where publication has to be
done in the official gazette or newspaper of general circulation, judicial decions need to be
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published but the publication can be done in another mode not necessarily through official
gazette or newspaper of general circulation. In this case, the Supreme Court ??? to say
that it is the duty of the lawyers to keep themselves abreast with the recent decisions of
the supreme court. As appearing in the ??? reports in the supreme court decisions, it was
published in the supreme court reports annotated or some laws journals. Obviusly,
therefore, for purposes of binding effect of validity, judicial decisions need to be publsihed,
but the publication could be in some other modes not necessarily the one contemplated
under section 2. There is also logic under this interpretation because 1. while it is not
stricly law, the judicial law decision or supreme court decision, forms part of the legal
system, 2. Decisions of the supereme court are supposed to clarify legal issues. They
interpret legal issues. SO if the law itself, for its validity needs to be published in
compliance with due process, so people will be properly advised, properly applies?, there's
no ??? reason why a decision of the supereme court that supposedly interprets and
clarifies a legal issue should not be published to ???[52:30] of the recent rulings of the
court. So again, in that sense, judicial decisions, require publication as mandated under
the section, but as to the specific manner of publication, you apply Felisa de Roy. SO,
these are the official acts which fall under the reauirement prescribed in Section 2, the
need for publication.
There is a rule on how to reckon the date of publication. It says there 15 days after
completion of publication. What is the date of publication? Under the old administrative
code, for purposes of fixing the eff of a law in relation to section 2, the law presumes that
the date of publication is the date indicated in the Official Gazette so every issue of the
Official Gazette it contains a date of issue. So the rule there, the presumption there is that
the date of publication is the date of issue indicated in the Official Gazette itself. The
problem arises when the date of issue as indicated in the Official Gazette is not actually
the date the Official Gazette is released for circulation. So lets say that the date of issue is
with a particular date but release later for circulation. So how do you know reckon the
period of effectivity? How do you know reckon the 15 days from publication. This is
answered in the case of Lara vs. del Rosario. This concerns the effectivity of the Civil
Code. This is a case involving a claim of an employee of this employer of certain benefits,
a certain benefit which was affected by the effectivity of the New Civil Code one of the
issues raised in that case was on the date of the effectivity of the New Civil Code. In this
case Supreme Court said that the New Civil Code took effect on Aug 30, 1950 it is one
year because the Civil Code itself provides for specific period of effectivity, one year from
completion of publication, the Supreme Court said Aug 30, 1950 which is one year from
the date of publication. Now it turned out that this 1 year period was computed from the
date of actual release of Official Gazette of circulation. In case the date of issue is different
from the date of actual circulation you reckon the date of effectivity from the date of actual
release of Official Gazette for circulation. This is the time that the Official Gazette is made
available to the public.
Article 3 it says there ignorance of the excuses no one from compliance therewith. This
simply means that a person may not excuse himself from liability arising from violation of
the law simply because he is ignorant of the law he is not aware of the existence of the
law. The obvious purpose of this provision is to prevent evasion of a positive law. This is
founded on expediency, public policy and necessity. Otherwise it will be convenient for
someone or anyone to excuse himself from liability of a simple violation by simply invoking
ignorance of the law. Ignorance or knowledge of the law is a state of the mind it will be
very difficult to ascertain whether or not a person has actual knowledge of the existence of
law. So as it is now, article 3 which does not excuse ignorance or someone form
compliance of the law. The presumption is everyone is presumed to know the law. The
question is if everyone is presumed to know the law why is there a need for publication
which is mandated under article 2. Now how do you reconcile this seeming inconsistency
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on articles 2 and 3 if everyone is presumed to know the law why is there a need for
publication. To reconcile this seeming inconsistency, the Supreme Court ruled that the
principle meshed out under article 3 is presumed to know the law presupposes article 2. In
other words, everyone is presumed to know the law if the law has been duly published. So
if the law has never been published, ignorance of the law is an excuse. As a matter of fact
if the law has never been published legally there is no law. So the presumption that
everyone is presumed to know the law or the principle that ignorance of the law excuses
no one from compliance therewith applies only if the law complies with the requirement
stipulated under article 2 and that is publication.
Take note that for purposes of applying article 3, ignorance of a foreign law is not covered
because in so far as foreign law is concerned it has to be proved as a matter of fact. Our
courts do not take judicial notice of a foreign law. So if a party invokes a certain law
existing in a foreign country that law has to be proved as a fact. There is no presumption of
knowledge of a foreign law different from a domestic law that everyone is presumed to
know the law provided that it has been duly published. How do you prove a foreign law? It
depends. You have to distinguish between a foreign written law and a foreign
unwritten/oral law. Lets go to the ways in proving a written foreign law. Under Rule 132 of
the Rules of Court or the Rules of Evidence particularly Section 24, a foreign law may be
proved by number one by the official publication of a foreign law. So if in that particular
foreign country they have a counterpart of our Official Gazette then you just have to bring
to the court that counterpart of the Official Gazette that contains the official publication of
that foreign law. Or if you cannot bring the official publication to the court you have the
alternative of just presenting to the court a certified true copy of that foreign law just a copy
and not the original publication of that foreign law. But it is not enough to present a copy
but that copy has to be a certified copy. A certified copy is a copy of the original which is a
vested to by the official custodian that that copy is a faithful reproduction of that original
available in his custody. You have a copy of the original and it must be accompanied by an
attestation to be signed or executed by the legal custodian to the effect that that copy is a
faithful accurate reproduction of the original in his or her custody. Since this document is
kept outside the Philippines, Section 24 of Rule 132 partly provides that the certified true
copy of that document or foreign law should likewise be accompanied by a certification we
call it authentication attested to by the consular officer of the Philippines stationed in the
country where that foreign document is kept. Some of you may be familiar of this foreign
document that contains a red ribbon that is a formal requirement for authentication,
consular authentication. This is made in compliance with the requirement under Section 24
of Rule 132 of the Rules of Court. That is to prove that the document kept outside the
Philippines is genuine and authentic. So when it comes to a copy of a written foreign law it
must be prove either by an official publication or a certified true copy accompanied by a
certification attested by the legal custodian as well as the certification issued by the
Philippine consular officer stationed in the country where that foreign document is kept.
Otherwise it may not be admissible as evidence in court. That is in so far as a foreign
written law is concerned. What about if its a foreign custom? How do you prove it in our
court? There are also two ways to prove a foreign unwritten law. First you may call in
expert witnesses, witnesses who are shown to be adequately familiar or expert on the
matter. Or you may present the printed and publish report of decision of the foreign court.
So they have there a counterpart of our SCRA, published reports of decisions of Justices.
What happens if a party invoking a foreign law fails to prove the foreign law? How does the
court resolve the issue involving a foreign law which is not duly proved? We have the so-
called Doctrine of Processual Presumption. The Doctrine of Processual Presumption is
that in case a foreign law is not duly prove but this is necessary for the resolution of the
issue, the court will have to presume that that foreign law is the same as our own law.
Failure to prove entitles the court to presume that that foreign law is the same with our
laws. This is precisely the ruling in Yao Kee vs. Gonzales. This involves the intestate of
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proceedings of the estate of the late Sy Kiat, a Chinese national, who upon his death left
certain properties in the Philippines. Upon his death some of his children, Aida Gonzales,
filed a petition in court to settle the estate of Sy Kiat at the same time praying that Aida
Gonzales be appointed as the administratix of the estate of the late Sy Kiat. This was
opposed by Yao Kee who claims to be the legitimate legal wife of the deceased Sy Kiat.
Yao Kee opposed the petition and claim that she be the one appointed as the administartix
of the estate of her late husband. According to her she was legally married to the late Sy
Kiat pursuant to a marriage ceremony solemnized in accordance with the Chinese law or
customs in China. Of course the status of Yao Kee as the alleged legitimate wife of the late
Sy Kiat was contested by the other groups of heirs the group of Aida Gonzales. They claim
that Yao Kee is not legally married to the late Sy Kiat. Yao Kee herself testified that the
alleged marriage took place in China and as a matter of fact according to her that their
marriage was solemnized in a marriage ceremony prescribed by the practices in their
country. In accordance with their practice/customs, the marriage ceremony took place
even without the presence of a solemnizing officer. So in China the husband and wife, the
marriage will be solemnized even without the participation of the solemnizing officer that is
according to Yao Kee that this is the custom in China. That is in accordance with the law in
China. Unfortunately Yao Kee failed to prove that indeed that there is that law in China
insofar as this is concerned. So there was failure to prove the existence of a foreign law in
this case Chinese law on marriage. So how did the Supreme Court resolved the issue
whether or not Yao Kee was legally married to Sy Kiat. Applying the doctrine of processual
presumption the SC said, in this case the court should apply the Doctrine of Processual
Presumption. The court should presume that law of marriage in China is the same In the
Philippines. What is the law of marriage in the Philippines? Under the family code or Civil
Code, one of the formal requisites of marriage is that it must be solemnized in the
presence of a solemnizing officer otherwise absence of this the marriage is void.
Presenting from this law, the Supreme Court said since Yao Kee certified that their
marriage was solemnized without the presence of a solemnizing officer and applying now
the law in the Philippines governing marriage it follows that her alleged marriage with the
late Sy Kiat is void on the ground that there was no solemnizing officer in accordance with
Philippine law on marriage. This case Yao Kee vs. Gonzales illustrates the principle that in
case the foreign law is not duly proven in court the court is justified in presuming that that
foreign law is the same as ours. In our jurisdiction the doctrine is called the Doctrine of
Processual Presumption.
Take note that while ignorance of the law is not an excuse, mistake of fact is an excuse.
You have to distinguish mistake of fact or ignorance of fact from mistake of law or
ignorance of the law. One is a defense the other is not. If the mistake or ignorance of one
refers to an essential fact a fact which have it been to as the person believing to be that
act would have been a valid or justified act which in turn that ignorance or mistake of fact
is an excuse. Lets take the case of US vs. Ah Chiong this case illustrates how the SC
applied the principle of mistake of fact. Ah Chiong was a Chinese national who worked in
the Philippines. He was employed by his employer as a cook, a stay in cook, and so in the
course of his employment he was made to stay at a place belonging to his employer.
Together with Ah Chiong is a co-worker a house boy, also employed by the same
employer, who is staying in the same bedroom. In the past there have been criminality was
prevalent in the area. So it has been the practice of Ah Chiong to keep a knife beneath his
pillow during the night. One night while Ah Chiong was asleep in his bedroom, his co-
worker the house boy was late in coming that was already late in the evening that Ah
Chiong was awakened to the sound in the door. Now, the door did not have a permanent
so by a way of security measure Ah Chiong and the house boy would just have to place a
chair against the wall so that it will be stabilized. One evening, Ah Chiong was awakened
by the sound coming from the door which forced open by someone outside, so instinctively
he asked that someone to identify himself but no one answered. Instead that someone
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outside keep on pushing open the door until suddenly Ah Chiong felt that the hard object
hit hard in his body. It was actually the chair placed against the door that hit him which
moved forward as a result of forcible opening of the door. It was at this moment that Ah
Chiong for the last time warned the intruder that if you will enter the room he will kill him
but just the same the intruder never bothered to identify himself. Believing that he was
under attack Ah Chiong got the knife he placed under his pillow and stabbed the intruder
when in fact the intruder was actually his co-worker who obviously played a joke on him.
He was prosecuted for homicide for the killing of the house boy. Whether Ah Chiong
invoked self-defense according to him that the time he stabbed the house boy he thought
that the intruder was a robber or thief and that he was under attack.
Transcription start: 25:45
He was prosecuted for homicide for the killing of the houseboy. Mr. Ah Chong invoked the
defense of self-defense. According to him, at the time he stabbed the houseboy, the
intruder, he thought that the intruder was a robber, or a thief, and that he was under attack
and that he was only defending himself.
Supreme Court said, this is a clear case of Mistake of Fact because had the belief of Mr.
Ah Chong turned out to be true and it was a robber and thief, and he was under attack
instead of stabbing the house boy, it would have been a valid exercise of self defense. But
the Supreme Court said that a mistake of fact or ignorance of fact can only be invoked as
a defense provided there is no fault or negligence on the on the part of the party who
invokes it.
This case established that Mr. Ah Chong warned the intruder not only once but thrice to
identify himself, but no one answered. So this is a case for the application of the Principle
of Mistake of Fact. Take note of that case.
Lets go to Article 4. It says that laws shall have no retroactive effect, unless otherwise
provided. So, as a general rule, laws shall have a prospective application. What is, whats
prospectivity? It means that laws shall operate on facts, transaction or events. That
occurred after the law took effect. So if the law takes effect today, then that law shall apply
only on facts, events and circumstance or transaction that takes place today and onwards
when the law is already enforced and effect. It is not suppose to apply on facts,
circumstance or events that took place before that law took effect. Why? Because if a law
is given retroactive application, if the law is applied to facts, circumstance, and
transactions that took place before it was given effect, standed out vested rights would be
impaled. Because before that law took effect, there were already rights that party may
have acquired which should not be given, so thats why we have that general rule that in
law or in the impairment of vested rights should be applied prospective to look forward,
future not backward.
The opposite of prospectivity is retroactive. But there are well recognized exceptions. What
are these exceptions?
Number one: okay, before that, this principle of prospectivity of laws is best exemplified in
the case of, the old case of Buyco vs. Philippine National Bank (guys, its G.R. No. L-
14406. June 30, 1961)
Before, immediately after the war, a law was passed, granting certain benefits to
government employees of persons working for and in behalf of the government whose
compensation and salary were suspended due to the war. After the war, a law was passed
to the effect that these government officers or persons acting in behalf of the government
should be given their salaries which they could have earned had it not been for the war.
One of the mechanics of the implementation, this qualified the government officers or
employees or persons acting in behalf of the government were given the so called Back-
pay Acknowledgement Certificate. Like a P.O. when you buy in Gaisano Metro, you buy
goods instead of cash you deliver the P.O. (#ShabuPaAtorni) this is a form of a certificate
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of indebtedness, ok. In the part of the provision of this law, I think Republic Act 987
(actually, Republic Act no. 897) is that those qualified individuals who had pending
obligation with the government may settle this obligation by using the Back-pay
Acknowledgement Certificate. Now, its so happened that Mr. Buyco, obtained a loan from
the Philippine National Bank, so in payment for the balance of his loans, Mr. Buyco offered
to pay his loan obligation through the Back-pay Acknowledgement Certificate but this
was refused by the Philippine National Bank, subsequently this law was amended or
repealed by another law, ah not not a law, under the general effectivity of this laws under
the charter of the Philippine National bank, the Philippine national bank is authorized to
accept Back-pay Acknowledgement Certificate as payment for loan obligations from the
borrowers. But, subsequently, after Mr. Buyco offered to pay his obligations using his back-
pay acknowledgement certificate, a charter of the PNB, the law that created the Philippine
National Bank was amended. This time, PNB is no longer allowed to accept back-pay
certificates as payment for loan obligation. So this dated PNB insisted on refusing to
accept the offer of Mr. Buyco to pay his loan obligation using his back-pay
acknowledgement certificate. The case went all the way up to the Supreme Court. The
issue there was whether or not PNB can be compelled to accept Mr. Buycos back-pay
acknowledgement certificate. The argument of PNB was that PNB was merely complying
with the provision of the charter, the amendatory law which disallowed PNB from accepting
Back-pay acknowledgement certificate. On the other hand, Mr. Buyco argued that while it
is true that the charter of PNB was amended, and it is now PNB is prohibited from
accepting back-pay acknowledgement certificates but it is a fact that before this law was
amended, before PNB was disallowed by the charter from accepting back-pay certificates,
Mr. Buyco already made his offer to pay! And at that time when the offer to pay was made,
the prevailing charter of PNB allowed PNB to accept the back-pay acknowledgement
certificate as payment. The issue boiled down to whether or not the amendment of the
charter of PNB which came later, shall be given retroactive effect, so as to justify PNB in
refusing to accept Mr. Buycos back-pay acknowledgement certificate. The Supreme Court
said, invoking Article 4 said, law shall have prospective application. The amendment of the
charter of Philippine National Bank shall apply only to cases after the effectivity of that
amendment, not before because it would impair the right of Mr. Buyco that was already
vested in him. At that time, he offered to pay his obligation using his back-pay
acknowledgement certificate. So this case illustrates, the general principle that a law
should be prospective in application.
But there are exceptions, what are these recognized exceptions?
Number one, Article 4 provides for the exception. It says there that while a general rule
shall have no retroactive application, the law may so provide that laws may have
retroactive application. Ok, so, if the law itself provides for the provision that this law shall
be given retroactive application, as a general rule, that would be a valid law. Because
under Article 4, retroactive application may be applied if the law itself provides for
retroactive application. But this exception has its own exception. So even if the law itself
provides for retroactive application, retroactive application cannot be had when the law will
amount to ex post facto law.
What is an ex post facto law? An ex post facto law is a law that makes criminal an act that
was not yet criminal at that time it was committed. So, for example, a law is passed today,
making those individuals who engage in premarital sex making it a heinous crime that one
found guilty may be penalized with death through hanging. Lets assume that that law
provides for retroactive application, it says there the provision of this law shall be given
retroactive application and that it covers premarital sex even before this law takes effect.
Lets assume that Mr. Timothy Yu was so obsessed with premarital sex five years ago
(#MiahMoves baybeh), and under the exception to the exception, Mr. Timothy cannot be
prosecuted , cannot be prosecuted, charged, convicted for violation of this law because
giving it retroactive application would amount to ex post facto law. It would amount to ex
post facto law because at that time Mr. Timothy enjoyed pre-marital sex, to his sickening
Persons Scutarius Legis
delight, that act of premarital sex was not yet a crime at that time. So it cannot be done, so
even if the law provides for retroactivity, if that law would amount to ex post facto law, it
cannot be given retroactive application. Take note of that.
Number two exception: Exception to prospectivity. When the law is procedural or remedial
in nature, remember? Kinds of laws? We have the substantive laws, the laws that create
rights, impose obligations. We also procedural or remedial, the same, they are the same.
These laws, do not impose obligations, neither do they create rights but simply provide for
procedure in enforcing a right. Typical example of procedural or remedial laws is the Rules
of Court
The rules of court do not create rights, they do not impose obligations but provide for
procedure for the enforcement of ones rights and remedies remedies in the
enforcement of right, remedies in the enforcement of obligation. Why are procedural laws
or remedial laws are given retroactive application? The reason why laws shall have
prospective application is to avoid the impairment of vested rights. Procedural laws or
remedial laws as a general rule do not impair vested rights because no one has vested
rights to procedure. The reason is obvious, procedure do not create rights. So no
impairment of rights. So if the nature of the law is procedural or remedial, the general rule
is it should be given retroactive application.
This is illustrated on the case of Zulueta vs. Asia Brewery
Asia Brewery is a corporation engaged in the manufacture, sale and distribution of beer
products. In pursuit of its business, Asia Brewery entered into a distributorship agreement
with Zulueta alleging breach of contract, alleging violation of the provisions of
distributorship or dealership agreement, Zulueta went to court and filed a case against
Asia Brewery for breach of contract. By way of retaliation, Asia Brewery filed a case of
collection of sums of money in Makati against Zulueta, representing the value of the beer
products that Asia Brewery delivered to Zulueta but remained unpaid, there were two
pending cases, charged and counter-charged between the two parties. Since these cases
arose from the same facts, Zulueta filed a motion to consolidate the Makati case with the
Iloilo case, because the first case filed by Zulueta was filed in the Iloilo court, and the
second case was filed in Makati. Zulueta filed for consolidation of these two cases, so it
would be jointly tried in Iloilo. Obviously, Iloilo is the home court of Zulueta. This motion for
consolidation was granted by the Makati court, because the motion for consolidation was
filed in the Makati court and the Makati court directed that the case be directed to the Iloilo
court. Of course, Asia Brewery was not satisfied with the order of the Makati Court
directing the consolidation. Asia Brewery filed a petition for certiorari with the court of
appeals to question the order of consolidation. The court of appeals granted the petition for
certiorari and Zulueta elevated the case to the Supreme Court. One of the arguments of
Zulueta there was the Court of Appeals committed a grave error in entertaining the petition
for certiorari filed by Asia Brewery because the petition was filed out of time. Zulueta said,
court of Appeals should not dismiss the petition for having been filed out of time. This is
the argument of Zulueta. The order of consolidation subject to the petition of certiorari was
received by Asia Brewery on March 23, 1997. In July 1997, the rules of court were
amended. With the enactment of the 1997 Rules of Civil Procedure. This law or this new
rule, took effect July 1, 1997, so two months from the day Asia Brewery received a copy
for the order of consolidation. Under this new rule, a petition for certiorari should be filed
within 50 days of the order subject of the petition. It turned out that the petition for certiorari
filed by Asia brewery was late, if counted 30 days from the receipt of the order. Because
the petition was filed only on August 23, 1997. How did Asia Brewery counter-argue?
Justifying the petition filed in August 1997? Asia Brewery argued that, at the time they
received the order of consolidation, which was subject to the petition for certiorari, the
1997 rules of Civil Procedure did not yet take effect. It only took effect July 1, 1997. So,
Asia brewery argued that for purposed of filing for a petition for certiorari, that it has to be
governed by the old rule and under the old rule, the period to file a petition for certiorari is
90 days not 50 days. So if we count from May 23, 1997 to the date when the petition for
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Certiorari was filed on August 23, 1997. It was still within the 90 days period. Under the old
rule. So the issue here is whether or not the 1997 rules of Civil Procedure took effect on
July 1, 1997 should be given retroactive application. Take note that this case was filed
before the 1997 rules of civil procedure took effect. The Supreme Court said the 1997 Rule
of Civil Procedure is a procedural or remedial law, therefore, a general rule, it should be
given retroactive application, therefore, the period of when to file the petition for certiorari
should be that provided for the 1997 Rule of Civil Procedure which is 50 days. The petition
filed by Asia Brewery was out of time. This case illustrates the principle that as an
exception to principle of prospectivity insofar as procedural or remedial rules upurturn(what
the what???) the rule is retroactive exception
The principle that there is no vested right in procedure. But of Course, this principle also
admits an exception and the exception being is when retroactive application of a
procedural or remedial law could impair vested rights. It is precisely the ruling in the case
of Tayag vs. Court of Appeals. Tayag, involves in a complaint for inheritance is what
essentially an action to compel the legitimate petition filed by the mother in behalf of the
minor child. This was filed after the death of the alleged father, Atty. Ocampo. The action
was filed because the (sic) alleged father was already dead. The action was filed against
by the administatrix of the estate of Atty. Ocampo. Apparently, the administatrix was the
daughter of Atty. Ocampo. This was opposed by the estate as represented by the
administatrix, on the ground, among others, that the action to compel recognition has
already prescribed. This is based on Article 175 of the Family Code because under 175 of
the Family Code, an action to compel recognition of an illegitimate filiation should be filed
during the lifetime of the alleged father, and then Atty. Ocampo, the alleged father of the
minor child was already dead, the administatrix argued that the action has already
prescribed. That was the argument of the estate. On the other hand, the mother, acting for
in behalf of the minor child, argued that under the New Civil Code particularly Article 285,
an action to compel the legitimate filiation as a general rule certified during the lifetime of
the alleged father, but if the alleged parent dies during minority, the action may be filed
before the declaration of four years from the time of the mothers child reach the age of
minority. There was obviously conflict between the application of 175 of the Family Code
on one hand, and Article 285 of the New Civil Code on the other hand. Take not that with
the action to, the action to claim inheritance are all actions to compel legitimate filiation,
the law enforced at that time what the, oh no, the law at that time was done the Family
Code was not yet in effect. But during the pendency of the action, the Family Code took
effect in 1988. Ok, so, the bone of contention in this case is whether or not Article 175 of
the Family Code should be given retroactive application so as to cover the action for
inheritance or action to claim inheritance which was prescribed to the minor child before
the Family Code effect. The argument there, of course, is that, since prescription of action
is a matter of procedure, meaning procedural in nature or remedial in nature for the
accused start Article 175 of the Family Code should be given retroactive application as
therefore the action has already prescribed. But the Supreme Court disagreed with the
argument of the estate. The Supreme Court said that that while the general rule,
procedural rules or remedial rules are given retroactive application and assuming the
Supreme Court said that, assuming that prescription is a matter of procedure, so the
Supreme Court was not really categorical in holding that prescription is a matter of
procedure, but assuming prescription is a matter of prescription or remedial in nature,
retroactive application cannot be validly have in this case because when the petition was
filed, before the effectivity of the Family Code the minor child already acquired vested
rights to pursue his action to claim inheritance and of compel recognition of illegitimate
filiation, and this rights to pursue, pursuant to 285 of the New Civil Code was already
vested, which entitled the child to pursue it in logical conclusion and that right can never be
taken away by the subsequent implementation of the Family Code. So this illustrates the
section to the principle that for procedural or remedial law, retroactive application is the
Persons Scutarius Legis
general rule. Exception is when retroactive application would impair vested rights. Take
note also that the rules on retroactive application in so far as procedural or remedial laws
are concerned is limited only to cases which are still pending and undetermined of the side
the new rules or remedial law took effect. So if the new rule or the procedural rule or
remedial rule specific today, this principle of retroactive application shall cover only cases
which are still pending and on the time the laws take effect. It cannot extend to cover
cases which have already become final and executory at the time that procedural or
remedial law takes effect. This is the ruling in the case of Municipality of Coron vs. Cario
which involves an action for authority to demolish certain structures (sic) of government
property, a wharf belonging to the Municipality of Coron, Palawan. After series of trials or
hearings set by the trial court, the defendant failed to appeal which led to the court to
declare this as having waived their rights to cross-examine the witnesses of the
Municipality as well as to present their own evidence. Thereafter, the trial court rendered a
judgment in favor of the Municipality and against the defendant. They satisfied the
judgment that the defendant filed an appeal to the Court of Appeals. At that time, the Rules
of Court insofar as appeals are concerned require that the appeal must be accompanied
with records on appeal. You know the nature of an appeal is that, the decision rendered by
the lower court is to be reviewed by the appellate court, the higher court, and therefor by
necessity, the records available at the lower court will have to be forwarded to the
appellate court. In this case, from the RTC to the Court of Appeals. Now, given the
voluminous records of the case, and the fact that during the time there was only one Court
of Appeals in the Philippines stationed in Manila, it was very expensive, costly to appeal
the case from the lower court to the Court of Appeals. So obviously, because of the lack of
resources on the part of the defendant, they were not able to comply with the directive of
the Court of Appeals to forward all the records available at the Regional Trial Court to the
Court of Appeals. For their failure to comply the order to submit the required records on
appeal, the Court of Appeals dismissed the appeal, and eventually, the decision became
final and executory. Thereupon, the trial court issued a writ of execution on (sic) the
demolition of structures of the subject of the case. Required at this time, that the
defendants move for the revival of the action considering that a new rule took effect. This
time, the pending of the requirements, the requirements on the record on appeal. So they
argued that considering that this requirement is no longer imposed under the rules and
these rules should be given retroactive application, and therefore, their appeal, which has
already been dismissed should be revived. The Supreme Court disagreed with the
defendant. The Supreme Court said that the principle of retroactive application insofar as
procedural or remedial laws are concerned extends only to cases which are still pending
and undetermined at that time the new rule or remedial law took effect. It cannot cover
cases which have long become final and executory at that time of effectivity, otherwise,
there would be no end to litigation. So thats the exception to prospectivity as regards to
procedural or remedial rules.
Lets go to the third exception. Penal laws. (Are you sure we havent discussed that? Yes
sir!) Penal laws. When it comes to criminal laws, the rules is, it should be given retroactive
application provided, it is favorable to the accused. This is pursuant to Article 22 of the
Revised Penal Code. So as a general rule for criminal laws, retroactivity is the general
principle. This was the ruling of the case of People vs. Patalin. Patalin involves the
prosecution for the crime of robbery with rape committed in 1984. At that time, the
prevailing law imposed the penalty of death for robbery with rape. During the trial,
particularly in 1987, when the new Constitution was ratified, the death penalty was
abolished. But this was restored or reimposed in 1992. In 1994, the accused was
convicted. So at that time of the decision of conviction was rendered, the law in force was
that that reimposed the death penalty. So the question brought before the Supreme Court
was whether or not the accused should be penalized with death pursuant to the law
enforced at that time when the decision was rendered. Supreme Court said the ruling is,
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when it comes to criminal law, and if it is favorable to the accused, the principle is
retroactive application. While it is true that when the time was committed in 1984, the law
enforced was that death is the imposable penalty of the crime of robbery with rape, when
the death penalty was abolished in 1987, the effect of the abolition of death penalty has
benefited the accused because that abolition was given retroactive application to cover
crimes before the abolition of death penalty. And because the accused has already
benefited from the retroactive application of the abolition of death penalty, this is already a
vested right in so far as the accused is concerned. Therefore, it cannot be taken away by
the subsequent reimposition of the death penalty. Notwithstanding the fact that the time
the decision was rendered the law enforced was that which already imposed or reimposed
the death penalty. The same principle was observed in the case of Manuel Rodriguez vs.
Director of Deeds. This involves the prosecution for the crime of estafa. The accused
pleaded guilty and so the court imposed a sentence of imprisonment against him. During
the service of his sentence, a new law was passed, this time, imposing a lesser penalty for
the crime of estafa, and making it a mitigating circumstance for the accused, when the
accused pleaded guilty to the crime charged in the Information. Now, this plea of guilty,
voluntary plea of guilty, was not considered a mitigating circumstance under the old law.
So the new law produces the effects of reducing the penalty of the crime of estafa and
making it available in the mitigating circumstance the benefits of voluntary plea of guilty.
The accused, invoking the principle that criminal law, if it is favorable to the accused, it will
be given retroactive application, filed a petition for habeas corpus because if the provision
of the new law has to be applied in this case, it would appear that he has already served
the penalty imposable against him on the basis of the new law, because the penalty
imposed under the old law was higher than the penalty imposed under the new law.
According to him, this penalty, the proper penalty he should serve should be that imposed
under the new law because that new law should be given retroactive application. Again the
Supreme Court sustained the accused. This case illustrates the principle that when penal
law or criminal law is favorable to the accused, it should be given retroactive application.
So Mr. Rodriguez was released from confinement. But this principle of retroactivity insofar
as penal laws are concerned, also admits some exemption.
What are the exemptions to the retroactive application of penal laws? Number one: When
the accused is a habitual delinquent. When the accused is a habitual delinquent, he
cannot avail of the benefits of retroactive application of a criminal or penal law even if
some penal law or criminal law is favorable to him. Now, who is a habitual delinquent?
Under Article 62 of the Revised Penal Code, the habitual delinquent is one who has (sic),
when the thing is, from his last release of conviction, that fellow released from his last
release of conviction for any of the crime of robbery, theft, estafa, physical injuries, so the
cases enumerated there, shall commit any of these offenses the third time or oftener, if the
accused from his last release of conviction for any of the crimes enumerated in 62
committed the same or any of these crime the third time around or oftener than this time is
considered a habitual delinquent and therefore he cannot avail of the benefits of
retroactive application of the penal law even if the penal law is favorable to the accused.
Second exemption. Another exemption: Even if the penal law is favorable to the accused,
it cannot be given retroactive application if the penal law itself provides that it should not
cover violations of law committed prior to the effectivity of that law. This would depict of a
situation where the new law is enacted, it supposed to repeal the old law but this repealing
law that repeals the old penal law explicitly provide that the provision of the repealing law
shall not cover cases or violations committed under the old law and therefore, any
violations committed under the old law shall continue to be prosecuted despite the repeal
of the law. In that respect, no retroactive application can be held. This is the ruling in the
case of Selso Larga vs. Judge Santiago Granada. Larga is an employer. At that time, there
are (sic) law, the Loan Development Mutual Fund, otherwise known as the PAG-IBIG Law.
At that time, employers under pain of criminal prosecution, are required to remit to the
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system, to the PAG-IBIG, the employees contribution to the PAG-IBIG Fund.
otherwise known as the PAG-IBIG law, at that time, the employers under *pain* of
criminal prosecution are required to remit to the system, to the pay PAG-IBIG, the
employee's contribution to the pay PAG-IBIG fund, failure to remit PAG-IBIG contributions
constitute a criminal offense under that law, suspected of having failed to remit the
required premium contribution of the employee, Mr Larga was prosecuted under this law,
during the pendency of this case however that law was amended this time making the
contribution of the employees, uhmmm, making the contribution to the PAG-IBIG fund on a
voluntary basis therefore it decriminalizes the act of non-remittance of the PAG-IBIG
contribution. Invoking the principle that criminal law should be given retroactive application,
Larga moved to dismiss the case on the ground that by virtue of the repeal of the law by
which he is prosecuted, he cannot anymore be prosecuted and convicted of the offense of
which he is charged because of the repeal. That law, the repealing law should be given
retroactive application and would cover his case even if his case was filled, and the act
was committed before the effectivity of the repealing law but the Supreme Court rebuffed
mr. Larga, the Supreme Court said, looking into the provision of the repealing law it is clear
that the repealing law provide for a cut-off date during which contribution to the system
was made voluntary, the effectivity there was 30, January of 1987 or 86, so for contribution
accruing January, from January 1987 onwards, the contribution was on a voluntary basis
but the repealing law itself provides that for those violations, meaning uhmm
contributions accruing before January 1986 or 1987, meaning before! remains to be
mandatory and therefore any act of non remittance continued to be a crime which can be
and should be prosecuted under the old law. So by, by reason of the law itself which
provides that the provisions of the repealing law shall not cover violations under the old
law. That repealing law even if favorable to Mr. Larga was not given retroactive application
because Larga was prosecuted for violations committed before the effectivity of the, ahw
before the cut-off date provided for by the repealing law on non-remittance before January
of 1986 or 87. (clears throat).
Another exception to retroactive application, even if the penal law is favorable to the
accused, no retroactive application can be done if the accused himself in whose benefit
the principle is intended chooses to disregard the benefit of the new law and insist that he
be prosecuted under the old law. This one, the doctrine illustrated in the case of Ferrer vs.
Pecson, Ferrer vs Pecson involves the prosecution for the crime of reckless imprudence
resulting to physical injuries and damage to property, vehicular accident. At the time the
crime was committed the prevailing law then was the Revised Motor Vehicle Law, in other
words crimes, uhmm the crime of reckless imprudence resulting in serious physical
injuries and damage to property was prosecuted under the Revised Motor Vehicle law,
which is a special law not under the Revised Penal Code, which is now *trying of offended
and prosecuted* at the RPC, but this case, this kind of crime was used to be prosecuted
under the Revised Motor Vehicle law. Under the Revised Motor Vehicle law, the penalty
imposed for this crime is higher than the, than the penalty imposed under the Revised
Penal Code. And under the judiciary act of 1948, the jurisdiction of the MTC covers only
criminal cases where the penalty imposed is not more than 6 years while cases, where the
cases, the cases which are punishable by a penalty more than that described going under
the MTC shall be cognizable by the RTC, now (clears throat), given the provisions of the
judiciary act of 1948 vis-a-vis the provision of the Revised Motor vehicle law which impose
a higher penalty for the crime, the MTC has no jurisdiction because the penalty imposed
by the, under the Revised Motor Vehicle law is higher, beyond the jurisdiction of the MTC
pursuant to the provisions of the judiciary act of 1948 but nonetheless Mr. Ferrer was
prosecuted before the MTC, after trial he was convicted, dissatisfied with the judgment. Mr.
Ferrer appealed to the RTC. While the case is now pending appeal before the RTC a new
law was passed, this time making the act or the crime of reckless imprudence resulting in
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serious physical injuries and damage to property cognizable, ahw, punishable under the
RPC, no longer under the Revised Motor Vehicle and as I said earlier the penalty under
the RPC the penalty is lower, the penalty is lower which is cognizable by the MTC. Okay,
so, Mr. Larga, ahw, Mr. Ferrer moved to dismiss the case on the ground that the MTC who
convicted him, who tried him and who convicted him had no jurisdiction because under the
Revised Motor Vehicle law the penalty is higher or beyond the jurisdiction of the MTC as
provided for under the judiciary act of 1948. On the other hand the government argued that
since the new law that made the crime punishable under the RPC is favorable to the
accused, it is favorable because it imposes a lower penalty than that provided for under
the old law, therefore, the MTC in relation to the crime, ahw, in relation to the penalty
imposed under the RPC which is lower has jurisdiction. So the question now is whether or
not the new law that made reckless imprudence resulting in serious physical injuries and
damage to property punishable under the Revised Penal Code should be given retroactive
application so as to cover the case of Mr. Ferrer. If so, then the MTC has jurisdiction, but if
not, then the MTC has no jurisdiction. In this case the Supreme Court favored Mr. Ferrer,
the Supreme Court said, while general rule penal laws shall be given retroactive
application if favorable to the accused, this case is an exemption because the accused
himself in whose favor the principle is intended, in whose benefit the principle is intended
disregards the new law. So he himself refuses the retroactive application and insist that he
be prosecuted under the old law and because under the old law the MTC has no
jurisdiction, the Supreme Court said the judgement of conviction was void and therefore he
should be These are the exception to the retroactive application of penal laws when
favorable to the accused.
Let's go to the 4th exception to prospectivity. The 4th exception is when the law is curative
in nature. What is a curative law? By the term itself, the term suggests a law, a curative
law is a law that is intended to cure or supply the deficiency or cure the defect in the
previous law. So by it's very nature, a curative law is retroactive in application because that
is entirely the purpose, to correct the past defect. So if a law qualifies under curative, the
general rule is it should be given retroactive application as an exception to prospectivitiy.
This is the principle initiated in the case of Juan Frivaldo vs the COMELEC, very
interesting case of Juan Frivaldo, Juan Frivaldo is a used to be the *top* opposition
figure during the Marcos time, because the administration of Ferdinand Marcos was so
heart-warming, Frivaldo could not anymore take the heat in the kitchen so he left the
country and over the years he acquired American citizenship by naturalization when the
political climate changed and the administration of Corazon Aquino took over, he returned
to the Philippines and exercised the most basic right of Filipino citizen, that is the right to
run for public office, he ran thrice and he was disqualified as many times as he *. He ran in
1988, 1992, and 1995, he was disqualified for not having the citizenship requirement, but
in his third attempt, the Supreme Court had a change of mind, this time he got what he
wished for. It was sustained by the Supreme Court in his last attempt to serve public office.
This is the story of Mr. Frivaldo, when he won the local election (stuttering) twice he was
disqualified but he, he uhmm persevered, he tried to reacquire Filipino citizenship by
trying to get his political allies in Congress because at that time there were only two rules
of reacquiring Filipino citizenship: by direct act of Congress or by the more tedious process
of naturalization, so he tried Congress, but because of political maneuvering of his political
adversaries he failed and so he availed of the judicial form, he filed petition for
naturalization, unfortunately for him due to some technicalities the petition was denied, so
all the while he won, * trying to serve Filipino people, in 1995 election, one year before the
1995 election he now tried his luck in trying to reacquire his Filipino citizenship by the new,
the third mode of reacquiring Filipino citizenship by virtue of this Presidential Decree
otherwise known as the repatriation law, repatriation law is an administrative process of
requiring Filipino citizenship, available to natural-born Filipino who lost their Filipino
citizenship, compared to act of Congress, compared to uhm, naturalization, repatriation is
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more uhm, it is faster, simpler, less costly on the part of the applicant. So he filed his
petition for application for repatriation, the year before 1995, but his application was
approved only on June 30 of 1995, a month after he was elected the third time as governor
of the province of Sorsogon. okay. Raul Lee, his political adversary moved to disqualify Mr.
Frivaldo on the ground that at the time, ahw, on the ground that his, the approval of
Frivaldo's application for repatriation came out only on June 30, 1995, and therefore at the
time he was elected, at the time he filed his certificate of candidacy, he was not yet a
Filipino! Raul Lee was undermined that the requirement of Filipino citizenship must exist at
the very least, at the time of the election or must be possessed by an applicant or by a
candidate at the time he filed his certificate of candidacy. okay. There is so many issues
there but we will focus our concern to the one which is relevant to our topic. one ruling
there obviously the Supreme Court, this time, in their effort to accommodate Frivaldo this
time, made a definitive ruling that the qualification of Filipino citizenship and the
qualification of a public elected official must exist or must be possessed at the time the
official is to assume office and not earlier not before because the reason why the public
official or one who, who run for public office should possess the qualification of Filipino
citizenship is because, is to avoid the scenario where our people are governed by
someone who owes allegiance to a foreign country, in other words we don't want to be
governed by officials who are not Filipino citizens and since the elective official is deemed
to govern at the time the * of that that qualification of a Filipino citizenship must be
possessed at the time he or he is to commence office and that is June 30 of 1995, the time
that Frivaldo's application for repatriation was approved and therefore he was qualified.
okay, now, the Supreme Court went on to say further that in order to settle all issues on
this matter we hereby declare that the approval of Mr. Frivaldo's application for repatriation
on June 30, 1995 retroact to the time he filed an application for repatriation and that was a
year before the 1995 election, and therefore even it be assumed that the requirement of
Filipino citizenship must be possessed at the time the candidate file the certificate of
candidacy or at the time of the election, given retroactive application of Mr. Frivaldo's
repatriation then it is clear that he was qualified because his repatriation was filed a year
before the election. The Supreme Court justifies the retroactive effect of Mr. Frivaldo's
approval of his application for repatriation, the Supreme Court invoked the principle that
curative statutes are retroactive in application, Supreme Court said this repatriation law is
curative in nature because this was intended to correct what was perceived to be a defect
or a deficiency in the previous laws governing re acquisition of Filipino citizenship, given
the tedious process with naturalization proceeding may take and the courts and the
nature..
--At the time the candidate files a certificate of candidacy or at the time of the elections,
given retroactive effect of Mr. Frivaldos repatriation, and it was clear that he was qualified.
Because repatriation was filed a year before the elections. The Supreme Court justified
the retroactive effect of Mr. Frivaldos approval for the application for his repatriation. The
Supreme Court invoked the principle that curative statutes are retroactive in application.
The Supreme Court said, this repatriation law is curative in nature because this was
intended to correct what was perceived to be a defect or deficiency in the previous laws
governing reacquisition of Filipino citizenship. Even the tedious process with naturalization
proceedings and the costs, and the nature of politics in this country, only few can actually
avail of or can reacquire Filipino citizenship. Even this limited and restricted mode of
reacquiring Filipino citizenship. So in order to afford Filipinos as simpler and less costly
way of reacquiring Filipino citizenship, this new lawthe repatriation law was filed. So
given the retroactive nature of this law, the Supreme Court said, the effect of the approval
of Mr. Frivaldos application for repatriation retroacts to the time of his application,
consistent with the curative nature of the law itself. But those are the exceptions to
prospectivity, any questions before we proceed to another topic?
Jeremiah: Sir, regarding the retroactivity effect, so it would apply to cases that are
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pending?
The cases that are already final, cant be affected by the new rule. Otherwise, there will be
no end to litigation. You keep on revising decisions on cases.
(Another person questioned but was not answered)
Lets go to repeal. Repeal, a topic closely related to prospectivity of laws or article 4 is
article 7 on repeals. What is the rule governing on the effect of a repeal of a law? And the
effect when the law is declared unconstitutional? Thats the essence of article 7 of the civil
code. In repeal, a law can be repealed by a subsequent law. And between two laws, the
later law prevails over the former. Because the later law contains the latest sentiment of
the law making body. That is why a law is repealed by the enactment of a later law. But the
question is, how do you reckon the effect of the repeal? Should the repeal retroact to the
repealed law took effect? Or should the repeal take effect under the time the repealing law
takes effect? Because the effect of the repeal renders the repealed law inoperable. The
rule here is, while the repealing law renders the repealed law inoperable, the effect of the
repeal is when the repealing law takes effect. The repeal does not undo the acts and
transactions, pursuant to the old repealed law, so whatever transactions or contracts
pursuant to the old law before the repeal, that should be respected as valid. Because that
was repealed, that law was a perfect, valid, effective and binding law. So the effect there
should be at the time the repealing law takes effect. But there is an exception, the
exception there is when the repealing law is a criminal law and the repeal is total and
absolute. Because if the repeal is total and absolute, the effect of the repeal does not only
cover the acts that took place during the effectivity of the repealing law but retroacts to the
time the repealed law took effect and therefore any acts or crimes or criminal liability
incurred under the old law before the effectivity of the repealing law are obliterated. So that
if one is prosecuted under the old law, or even convicted under the old law, if that old law is
repealed, and the repeal is total and absolute, the convict cannot anymore be made to
serve sentence or be prosecuted and he shall be released because in so far as the repeal
is concerned, the repeal produces the result in obliterating the crime of which he is
prosecuted. It is the ruling in the case of People vs Honorable Judge Oscar Pimintel, this
involves the prosecution for violation of RA 1700 or the infamous anti-subversion law, the
infamous law in the time of Marcos. Anyone who is suspected to be a member of the so-
called subversive organizations like the Communist Party of the Philippines, like Ninoy
Aquino, etc, are subversives and they were prosecuted under this law. Here, the accused
was arrested, charged with and prosecuted for violation of the Anti-Subversion Law. But
during the trial, a new law was passed decriminalizing subversion. Its not a crime to be a
member of the Communist Party of the Philippines. So the accused moved for the petition
for habeas corpus, for him to be released and the case be dismissed by virtue of the
repeal of the Anti-Subversion Law by the subsequent law which was total and absolute.
The Supreme Court said, since the repeal is total and absolute, it is obvious that the
intention of the legislation or the law making body, is to obliterate, the crime punished
under the old law. And therefore whatever criminal liability incurred under the old law is
also obliterated. Since the accused can no longer be continued to be prosecuted under the
old law which is not considered a crime under the new law. Take note that this principle is
applies only when the repeal is total and absolute. Such that the crime under the old law
ceases to be a crime. This is my answer to your question (referring to the question
previously not answered). There are exceptions because if the repeal is not total and not
absolute, you dont apply this principle. What are the instances that the repeal is not total
and not absolute? There are two instances when the repeal is not total and not absolute
and therefore you dont apply this principle demonstrated in People vs. Sevilla. First
situation, when the repealing law contains the saving clause. Saving clause is a clause
in a provision in a repealing law which expressly saves some provisions of the repealed
law. Meaning it is the portion or part of the repealing law which tells us that certain portion
in the old law that its supposed to repeal remains unaffected, enforced. And therefore in
that sense, not repealed. This is stated in the case of Buscayno vs Military Commission.
Persons Scutarius Legis
The case also involves the prosecution of those suspected of subversion. They were
charged with so many crimes and the violation of the anti-subversion law, RA 1700.
Subsequently during the case, a new law was it passed, the so called Revised Anti-
Subversion Law. Taking cue from the principle that when the penal law is repealed, it
produces the effect of obliterating the crime under the old law. Buscayno moved for the
petition for habeas corpus arguing that by virtue of the new law, the Revised Anti-
Subversion Law, the crime has already ceased to exist therefore there is no basis to try
and to detain him. But the Supreme Court disagreed, the Supreme Court said that while
the old RA 1700 was later repealed, by the Revised Anti-Subversion Law, it is clear that
the Revised Anti-Subversion law that it contains a saving clause. It contains a provision
that violations committed under the old law shall not be covered by the provisions of the
new law. Therefore the Supreme Court denied the petition for habeas corpus so far as the
violation of the law under the old law, before the repeal, that will continue because of the
saving clause. Another instance where the repeal does not result to the obliteration of the
crime and liability under the old law, is when the repealing law is a reenactment statute. It
is a statute or a law that repeals the old one but at the same time, punishes the act being
punished under the old law that it repeals. It is from the term reenacted. So its possible
that the repeal shall contain under matters but the crime punished under the old law
remains to be punishable under the new law. In so far as that act is concerned, which is
punishable under the old law and punishable under the new law, there was obviously no
intention to obliterate the crime. So why would the legislature reenact that portion in the
later law. Take note that the reason behind the principle, the principle that the repeal shall
produce the result of obliterating the crime under the old law, is the legislator or the law
making body (cut)
but if the repeal contains a saving clause, or when the repeal takes a form of a
reenactment statute, then that negates the intention of derates (sic). This is the ruling in
the case of People vs Concepcion. Benancio Concepcion was the President of the
Philppine National Bank. Under the old charter of the bank, any incumbent officer of the
bank is prohibited from obtaining loans from the bank either directly or indirectly. Over the
years, PNB charter underwent so many repeals in a series of repealing laws for a fact,
affecting the charter of the Phillipine National Bank. Accused of obtaining money from the
bank indirectly because what happened here was Benancio Concepcion, formed a
partnership where he had 40% interest and this partnership obtained loans from the bank.
This was an indirect violation of the law. An indirect benefit which was prohibited under the
charter. So he was prosecuted under the charter in effect that time when the violation was
committed. But subsequently the charter was repealed, and taking cue from the principles
that the repeal produces the effect of obliterating a crime, Mr. Concepcion moved for the
dismissal of the case. Because according to him, there is no more crime because the
crime under which he was being prosecuted has already been repealed. The Supreme
Court rejected his argument, they said while it is true that the charter under which Mr.
Concepcion was prosecuted has already been repealed, the repealing law punishes the
same act being punished under the old law in which Mr. Concepcion was prosecuted. And
therefore the intention of the lawmaking body in repealing the old charter was never to
obliterate any violation committed under the old law, for why would the legislature reenact
that part of the charter. Meaning why would the legislator in the repealing law now, punish
the same act which was punishable under the old law. The prosecution of Mr. Concepcion
on the case continued despite the repeal of the charter under which he was prosecuted.
The same ruling was applied in the case of --- vs Cuna. Cuna was prosecuted under the
violation of the anti-opium law for selling opium to someone who is not qualified or acquire
opium under the law. During the trial, the opium law was repealed. So Mr. Cuna filed for
the dismissal of the case arguing that the repeal produced the effect of decriminalizing the
act or prudeced the effect of obliterating the crime. The Supreme Court said the repeal of
the Anti-Opium Law is a reenactment statute, it punishes the same act as what is made
punishable under the old law. So when it comes to reenactment statute, that principle does
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not apply.
Q: Is that different from the revision of the new law, ?
Jeremiah question: Whats the difference between revision or amendment and reenacted
statute?
An amendment is small scale and specific, Article 2 of the Civil Code, in that case that is
the only portion affected by the amendatory law. That old law still exists, subject to the
amendment. Which is why, if you look at the Article 2 of the New Civil code now, which
states laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, or newspaper of general circulation, as amended. Because
originally, that provision only provides for Official Gazette, but by virtue of EO 200,
newspaper of general circulation is now incorporated in that provision. That is
amendment, the Civil Code still exists.
Repeal is the entire law ceases to exist. Strike out from the statute books. But a reenacted
statute is, example RA XXX, a law punishing premarital sex, and subsequently another law
RA WWW was passed, which says this law expressly repeals RA XXX. So RA XXX ceases
to exist. But because it is a REWRITE* of a reenacted statute, RA WWW punishes the
same act of premarital sex, a reenactment. Maybe there are some other provisions which
are different from the other provisions of the old law but essentially, insofar as the act
subject to be punished, that is the same act punished under the new law, that is
reenactment.
Or if there is a violation under the old law, RA XX, it will continue to be prosecuted despite
the repeal of the RA XXX, under the principle of reenactment, because by repealing the
law, it cannot be presumed that the lawmaking body intended the crime under the old law
obliterated. Because obviously the lawmaking body still intended to prosecute or make
criminal that same act.
Thats really in the context of reenacted statute, because in reenacted statute, because in
the reenacted statute the old law really is 56789.
Once there is a benefit of claim, it cannot be taken away. The essence of vested right. In
PP vs Patalin, at the time the crime was committed, there was death penalty. During the
trial, death penalty was abolished. During conviction, death penalty was imposed. When it
was abolished, thats it. It cannot be taken away from him, because he already benefited
out from the abolition of the death penalty. Thats vested right. And thats precisely the evil
so to be avoided by the principle of retroactivity. Thats why the general rule is prospective.
So, as I said, the later law prevails over the previous. S thats the essence of repeal, a
repeal is effected by subsequent law. However, this principle applies only when the
repealed and repealing law are of the same nature. General general, special special.
But if one is special, the other is general, you dont apply this principle that the later rule
should apply to the former. Whats the rule if one law is special, and the other is general?
When the general law was enacted ahead of the special, there is no repeal, because that
special law will only be considered as an exception to the general law. So both laws exist,
so they can be reconciled by making the special law as an exception to the general law.
This is the ruling of the case Lichauco vs Apostol. This involves an importer of carabaos
and cattle. Lichauco intended to transport cattles from abroad to be shipped to the
Philippines. But things were made difficult for him because the director of agriculture
issued a circular requiring all cattle to be shipped to the Philippines from certain countries
where animal diseases were reportedly rampant to undergo certain quarantine procedure
to avoid the diseases from spreading. Lichauco complained, because under section 17 62
of the Administrative Code, there was no restriction on the right of Lichauco to import cattle
from abroad. For his part, the director of agriculture invoked Section 17 70 of the
Administrative Code which was actually a later law that supposedly amended the
administrative code. Under section 1770, the bureau of agriculture is mandated to
promulgate rules to govern the importation of cattle from abroad from countries where
Persons Scutarius Legis
animal disease were reportedly rampant. So by virtue of this provision the director of
agriculture justifies the issuance of this circular requiring the quarantine of the cattle
coming from certain countries where animal diseases were reportedly rampant.
The issue there was which of the two laws prevail? 1762, which imposes no restriction, or
1770 which mandate or allow the restriction It was argued that 1770 should prevail being
the later law, because it was only a later amendment incorporated in the administrative
code. The Supreme Court however said actually this two can be reconciled because one
provision is general, the other is special. 1762 is more of a general provision, because it
applies to all cases of importation of cattle regardless of condition and time. But section
1770 is a special law because it applies only to a situation where the intended shipment of
cattle is to come from countries where animal diseases were reportedly rampant. So if the
shipment would not come from countries where animal diseases are rampant, you apply
the general provision which is 1762. But because the circular issued by the director of
agriculture is premised on the special situation pursuant to 1770, then that 1770 is both
special, and therefore according to the Supreme Court, it can only be considered as an
exception to the general law which is 1762.
So thats the rule if the general law was enacted ahead of the special. What happens if the
situation is the other way, special first, general later?
The rule is the general shall prevail over the special. Especially if the general cover the
same subject covered by the special. So there is the obvious intent there to repeal the
special. Or if there are irreconcilable inconsistencies, both cannot stand together, the
general shall prevail. So if the general law was enacted later, the rule is more consistent
with the general rule that the later statute shall prevail over the former.
Lets go to the effects when a law is declared unconstitutional. This is different from a
situation where a law is repealed by a subsequent law. Here a law is not repealed, but
declared unconstitutional by the Court. What is the effect?
The general principle, which is the orthodox view, is when the law is against the
constitution, the constitution shall prevail and the law is void. And what is the status of a
void law? A void law is a legal contemplation nonexistent. It imposes no obligation, it
confers no right, it affords no protection and it creates no office. It is as if no law existed at
all.
So at first glance you may argue that unlike in a situation where the law is simply repealed,
when the law is declared unconstitutional, the declaration of unconstitutionality shall
retroact to the time the law was enacted. Because a void law is a contemplation of law
nonexistent from the very beginning. But that is the orthodox view.
The jurisprudential trend now, is even if the law is declared unconstitutional, and its
supposed to be void from the very beginning, the fact that that law took effect before it was
declared unconstitutional, may have produced legal effects that cannot be ignored just
because that law was eventually declared unconstitutional.
That is the doctrine of operative fact. So even if it is void, whatever transactions that
occurred under that law before it was declared unconstitutional, these transactions could
have produced legal effects that cannot just be ignored simply because that law was
subsequently declared unconstitutional.
Its not actually nothing from nothing. challenged this law on the ground of due process. He argued that, this law violates due
It is precisely the ruling laid down in the case of Serrano de Agbayani vs PNB. This is the
case where a borrower obtained a law from the PNB. But shortly after the War, a law was
passed, popularly known as the Moratorium law, which enjoins lending institutions like
banks on borrowers from enforcing obligations incurred by the war sufferers. The purpose
of this law is to afford those borrowers who suffered from the war to recover financially
before they can be compelled to settle their loan obligation. Subsequently, when the
condition after the war improved, the moratorium law was challenged, and the Supreme
Court eventually declared it unconstitutional. When the law was declared unconstitutional,
PNB now instituted foreclosure proceedings to enforce the obligation of Mr. De Agbayani.
For his part, Mr. De Agabayani filed an action in court to enjoin the foreclosure of the
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mortgage, arguing that the right of the bank to foreclose its mortgage was had already
prescribed. An action to foreclose a mortgage prescribes in 10 years, but in this case PNB
initiated a foreclosure proceeding 15 years from the time the loan matured. De Agbayani
argued you cannot anymore collect my obligation, 15 years has elapsed, it is already a
stale demand.
The Supreme Court did not agree with him. The Supreme Court said While it is true that
the moratorium law is unconstitutional and being unconstitutional, is void, there were legal
effects before declared unconstitutional, that cannot be ignored.
The Supreme Court said, While it is true that the Moratorium law was declared
unconstitutional, and being unconstitutional is void, there were effects that the law before it
was declared unconstitutional produced some legal effects that cannot be ignored.
What is the effect that was produced by the Moratorium law that cannot be ignored in this
case? The Supreme Court said, During the effectivity of the Moratorium Law, before it
was declared unconstitutional, Philippine National Bank and the other lending institutions
back then, was legally prohibited from collecting the obligation, or even if they wanted to
neglect the call on that prohibition, so that when the law was declared unconstitutional
after so many years, they cannot be faulted for not asserting the right when the law was
still enforced. This section presupposes that the one is entitled to assert his right.. refuses
to assert it. Because this distinction is given to the party which is entitled to assert a right
but that party does not do anything to assert it within the certain period, the action
eventually prescribes. But in this case, Philippine National Bank did not waive the right to
institute it. If it did not or if it was not able to enforce its right to collect, it was not because
of its intention to waive it, but it was because of its prohibition under the Moratorium law
before it was declared unconstitutional. So that in counting the prescriptive period the
Supreme Court said, The period during which PNB was enjoined by Moratorium law to
enforce its right to collect, should not be counted.. because a lot of times, the running of
the prescription period was hold by virtue of the Moratorium law. So if that period during
which time the Moratorium law was in its effect and PNB was coincidented by enforcing its
right, deducted from the period of prescription of 10 years, the Supreme Court said, The
filing of the proposed proceeding was to relieve the prescriptive period of 10 years. So,
relating to the principle of operative fact, the effect of the law which was declared
unconstitutional is the fact that it holds the running of the prescriptive period. And that is a
legal effect that arose from the operation and effectivity of the Moratorium law before it
was declared unconstitutional. The same principle was applied in the case of Ynot vs
Intermediate Appellate Court. There was a law before the time of Marcos, intended to
prevent indiscriminate slaughter of cows. To achieve the purpose, there was a certain
Presidential Decree which prohibits the intergovernment transfer or transport of carabaos
as well as carabeef. Under this law, the provincial commander is given the authority to
seize either carabao or carabeef that the offender had been caught, committing the
crime. Ynot was one of those arrested for violating this Presidential Decree. The raid or the
act used to challenge the constitutionality of the law went to the Supreme Court;
process on two accounts:
1. The purpose, or the means was not reasonable, it was not germane to the purpose of
the law.
If the purpose of the law is to preserve carabaos, Mr. Ynot argued that the cow being held,
can the purpose of prohibition from transporting this carabao from one province to another
logically serve the purpose? Because one who is one who is bent on slaughtering the
carabao doesnt need to transport the carabao to another province, the Supreme Court
said, The purpose, the means is not germane to the purpose of the law, it violates due
process.
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2. The other thing is it allows the summary seizure of the things or the subject carabaos
without trial. Is this departation from of due process of law arbitrary at the very least? The
Supreme Court agreed with him. This is arbitrary. Seizing from one the property without
the benefit of trial. But were not interested on this principle, the portion where we are
concerned about is wherein the portion in the petition where the Supreme Court said that,
while the seizure is arbitrary, we cannot hold the provincial commander liable for damages
for the arbitrary seizure of the carabaos. Because before this law was declared
unconstitutional, that law was in effect. And being the provincial commander, he was duty
bound under the law to enforce it.
Doctrine of or the operative fact doctrine, before the law was unconstitutional, its a fact
that the law was enforced. And the principle in constitutional law is the law is presumed
constitutional.
Any question before we proceed to Section 5?
Section 5. Go back to section 5, we discussed section 4 in conjunction with section 7. So
lets go back to section. Section 5, Acts executed against mandatory or prohibitory laws
are void unless contrarily provided. Whats the mandatory prohibitory law?; typical
example, that example of prohibitory mandatory law, criminal laws. Because violation
entails that penal person. Any act committed against a prohibitory or a mandatory law is
generally void, unless the law itself provides that it be... or unless the law provides
otherwise.
What are the instances when the acts even if executed against mandatory or prohibitory
laws are not void?
1. When the act is committed against prohibitory or a mandatory law but the law itself
provides that it is not void but only voidable.
Distinguish void from voidable. Void: void from the very beginning; Voidable: valid until
annulled. Its perfectly valid until annulled. So here, even if the law is against a prohibitory
or mandatory law the act is not considered void but only voidable. Typical example is a
marriage where the consent of one party is officiated by fraud, intimidation, violence.
Intimidation, threats, violence constitute crime. You threaten somebody, you may be
charged with grave threats or life threats, or violence with physical injuries. So if one
commits threats or violence, thats against prohibitory or mandatory law that is even a
crime but under the family code, particularly the article 45 of the family code, the marriage
is not void but voidable. So even if you consent of the marriage which was obtained
through fraud, intimidation or violence, your marriage is still valid until you complain to the
court to annul it. But if you will be very happy to absorb the punches of your husband, you
are this masochist type, you are not provoked by that marriage, it remains to be valid. Coz
its then actually, the reason there is the offended party may ratify what an otherwise
voidable marriage. So its not void, because the law gives the offended party the choice
whether to proceed or to get out.
2. Another instance, when the law makes the act valid even if executed against
prohibitory or mandatory law. But the law itself makes the act valid but makes the party
responsible to some liability. Typical example of this is a judge who solemnized marriage
beyond its territorial jurisdiction. Under the family code, judges can only solemnize
marriage within their respective territorial jurisdiction. So a judge in Cebu cannot solemnize
a marriage in Bohol, because that authority to solemnize marriage is territorial. But if a
judge, in violation to this prohibitory law, solemnizes a marriage outside of its territorial
jurisdiction, the marriage remains valid. But the judge can be administrated by the crime.
3. Another example, the law makes the act void but recognizes some legal effects there
found. So the act is void, but recognizes some effects are legal. Typical example is if the
marriage is contracted where one or both is or are suffering from the so called
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psychological incapacity. Under article 36 of the family code, when one or either of the
contracting parties is psychologically incapacitated, your marriage is void. But children
conceived or born during the existence of the marriage, before it was declared void, are
legitimate. Or when your marriage is annulled or declared a nullity, under article 53 of the
family code, regardless of the court annulling or nullifying the marriage, should obtain not
only the dissolution of the marriage, but also the distribution of the properties including the
distribution of the properties to the parties, delivery of the presumptive legitimes to the
children. And all these should be recorded in the appropriate property registry, where the
properties are located. So the decision shall not only contain, shall not only direct the
dissolution of the marriage but also contain some provisions on the division of the property
acquired during the marriage. Now this distribution, partition of the lateral pursuit of
legitimes shall be recorded in the property of registry where properties affected are
located. So if the properties involved are located in Bohol, the acquisition should be
recorded in the property registry of deeds in the province of Bohol. Otherwise under article
53 of the family code, if subsequent marriage entered into by either of both without
complying with these requirements, shall be void. But if a child or children is conceived or
born during this kind of marriage, before it was declared void, legitimate.
These are the examples of situations where the act is executed against prohibitory or a
mandatory law but, the law itself declares it as void, but they could find this act valid.
Lets go to article 6. Generally, rights can be waived. So, we are always free to waive
rights; except if the waiver is against the law, against public policy, public order, morals,
good customs. So your waiver should always be subject to the exception; whether its
against the law, whether its against public policy, against moral, against customs. In other
words, putting it differently, there are rights that cannot be waived. By reason of public
policy, morals, customs, laws. An example of rights that cannot be waived by reason of
public policy: the right to life, ofcourse, especially with the RH bill. The right to life can
never be waived, so you cannot. Even if you want to die, you cannot ask your friend to
help kill you. Your friend can be prosecuted, cannot argue that hes only helping you or
your friend in killing you. Your friend is waving his or her right to life, that cannot be argued
in that matter because that right cannot be waived. Or you cannot waive to future
inheritance. Even if you anticipate the death of your parents, you cannot, before the death
of your parents, you cannot waive your expected inheritance, because inheritance is
necessary to life. Support, the right to support cannot be waived. Future support, I mean.
You cannot waive it because that is necessary to life.
There was also this case of Cui vs Arellano University where the Supreme Court said, a
contract between the university and the scholar, where the scholar supposedly waived his
right to transfer to another school unless they reimburse the expenses for his scholarship
is or against public policy and morals. Because the purpose of scholarship is to encourage
or recognize potential and talented students. It should not be used as a form of
commercial advertisement for the school.
The right to transfer when youre under custodial investigation can be waived. Right,
constitutional right to search and seizure can be waived, a general rule.
A right also cannot be waived if the waiver would prejudice the third party with the right
protected by law. So for example if you are a extension of a rich family and you are hoping
that your parents would die in the future, in the immediate future, but you have so many
creditors running after you, you have this habit of borrowing money. You cannot refuse;
you cannot waive in advance your potential inheritance because that would prejudice your
creditors who have been chasing you for his rights.
We have done article 5, 6, 7, 8.In judicial decisions, form part of the legal system of the
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Philippines. Take note that the only decision which is considered part of the legal system,
which creates binding precedent, is the decision rendered by the Supreme Court. Thats
the only decision that has the force and effect of a law because it will pursue that of the
law. Decisions of the MTC, RTC, Court of Appeals, no way. Only decisions of the Supreme
Court can be evoked of the binding precedent. For purposes of applying the principle of
adherence of precedent; adherence to precedent stare decisis. The only decision which
can be evoked under the principle of stare decisis is the one rendered by the Supreme
Court.
I already discussed obiter dictum. Theres not much to be worried about in this Lets go
to 9 and 10.
9: No judge or court may decline to render decision by reason of the absence, obscurity or
inefficiency of law. And section 10, in case of doubt, it is to be presumed, that the law
making body intended right and justice to prevail. Where referred to or pertained to the
duty of the judge to interpret that the law and render justice.
Time? So lets continue Tuesday. Well discuss 9 and 10. 14 conflict of laws. And then
Thursday, human relations. Friday Oh, Tuesday Thursday lang?
Article 9 states that no court or judge shall decline to render judgment by reason of the
silence, obscurity or inefficiency of the law. Relatively to article 10, in case of doubt on the
application of the law, it is presumed that the law-making body intended right and justice to
prevail. These provisions refer to the duty of the court to render justice in the exercise of its
judicial function. Now, the primary duty of the court is to interpret and apply the law with
the effect if there is no doubt, the law is clear in applying the law to the letter. It may be
hard.. The court may not agree with the wisdom of the law but if the law is clear, the court
has no choice but to apply. That's why we have the common principle 'dura lex sed lex',
the harder the better. So it's better difficult but still it is the law and it has to be followed and
any violation shall dictate a corresponding penalty. So, in case the judge, by reason of his
own biases, in lieu of political integration, religion, or the like, disagrees with the wisdom of
the law, the solution is not to disregard (....) the legislative solution is in order. They just
have to address is question to the lawmaking body because the court has no duty to skirt
from the clear letter or language of the law. This is the cardinal sin that Judge Veneracion
committed when he decided the case on a crucial rape of a minor and the law enforced at
that time was that this kid of crime is punishable by death penalty. But the reason of Judge
Veneracion's personal biases and religious beliefs obviously doesn't agree with the
wisdom of death penalty. He refused to apply the express and clear and irrefutable
language of the law and instead he reduced the penalty to reclusion perpetua instead of
death despite e findings that the accused was guilty of the charge. So, the Supreme Court
castigated Judge Veneracion -- his duty is to interpret and apply the letter or language of
the law which is clear, the courts have the duty to question the right of authorities to
question the wisdom of the law. Any issue on the wisdom of the law should be addressed
to the lawmaking body, not the court. Courts (..) judicial legislation, interpreting the law
beyond the clear language of the law. That should be admitted; otherwise it would violate
the constitutional mechanism of separation of powers; that should be the respected duty of
the court. But the rule is that when the law is standard up to the specific issue raised
before the court, because not all human problems can be addressed by existing laws,
there are too many problems in the society and it's just impossible to address it by our
existing laws or it might happen that a case is brought before the court requiring the
decision or resolution of the court but there is no specific issue of the specific existing law
that specifically address that question. Now, what is the court supposed to do when the
court cannot decline to render judgment? (...) when there is no law that specifically
addresses the problem.
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What are other sources when the court may consider in the resolution of the decision
despite the absence of specific laws on that matter, like customs. The courts may rely on
customs or the decisions of foreign countries involving the same or similar cases; the court
may consider as a guide in the revision of the decision or opinions of recognized writers or
apply experts on the matter. So these are the other sources of judicial basis in deciding a
case despite the absence of specific provisions of the law.
In case of doubt, it is to be presumed that right and justice is intended by the legislation so
that the decision of the court must be attuned to the concept of what is just and what is
right. This is the ruling in the case of Stephanie Nathy Astorga Garcia, a petition for
adoption filed by the natural father of the child. Stephanie Nathy Astorga Garcia is an
illegitimate daughter. His father Judge Catindig filed a petition for adoption to adopt
Stephanie as his own adopted child. In his petition for adoption, Mr. Catindig filed in
another case that one's adoption is decreed to the court, the child should be allowed to
use the surname Catindig which is the surname of the adoptive father and the surname of
the mother Garcia as the child's middle name. The trial court granted the petition for
adoption on the prayer of Catinidig to allow the child to use the surname of the mother
Garcia as the child's middle name. The primary reason of the court is that there is no law
which governs the use of the surname particularly by the adopted child, what we have in
existing laws is a law that governs the use of surname (...) So the issue there was whether
or not the child Stephanie will be allowed to use the surname of her natural mother as a
middle name once she is adopted by her illegitimate natural father. The Supreme Court
said, while it may be true that there is no law that allows an adopted child to use the
surname of the natural mother as her middle name, it is likewise understood that there is
no law that prohibits it. According to Article 10 of the civil code, the SC said that in case of
doubt, because this is now a doubt, there is a doubt on the absence of law that governs
this specific question. The SC said that it should presume that the legislature intended
right and justice to prevail. What is right and justice in this case? The SC said, the purpose
of adoption is to prevent of the child and once adoption is decreed, the adopted child is to
be vested with the rights similar to that of a legitimate child. And under the law, the
legitimate child is allowed to use the surname of the father and the surname of the mother
as her middle name. So, the SC said, if the purpose of the adoption produces the idea of
making an illegitimate child legitimate, it would now posses the same rights and privileges
of legitimate children. There is no reason why an adopted child should be discriminated
against using the surname of the natural mother to be her middle name. This gives total
justice, right and justice are better served.
The same principle is presented in the case of Salvacion vs. Central Bank of the
Philippines. Salvacion involved a prosecution for the crime of rape committed against 12 yr
old girl and a transient american tourist in the Philippines. The 12 yr old girl was raped four
times. So the criminal 4 counts of rape were filed against the American tourist and at the
same time, a civil action that was arising from rape was filed against the same accused.
But before trial could proceed in criminal cases, the accused was able to escape so the
criminal case would not be pursued or prosecuted because of the absence of the accused,
but the civil case proceeded. In the civil case, the court ruled in favor of the private
complainant and against the accused. The court then adjudged the accused liable in the
amount of more than 1 million pesos. When the judgment became final, the court issued
the writ of execution and the sheriff served the writ of execution of the China Banking
Corporation where the accused reportedly maintained bank deposit. The deposit was a
foreigner deposit account. Unfortunately, the bank involving the circular bank circulars
which is lifted by RA 6426 (if Im not mistaken) otherwise known as the foreign currency
deposit act. Under which, foreign currency deposits are absolutely confidential and
therefore cannot be subject of the writ of execution, writ of judgment or writ of attraction.
So basically, the foreign currency deposit account is beyond the reach of the court. That is
the purpose of that law. The issue there was whether or not China Banking Corporation
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can be compelled to release the bank deposit of the accused to satisfy the judgment of the
court on the civil action for damages filed against the 3rd party. There is now a conflict
between the right of the private complainant to be satisfied of the judgment in her favor
and the right of the bank or the accused insofar as the absolutely confidential nature of the
deposit. So, how did the Supreme Court resolve this issue? On the face of the absolute
nature of the currency of the dollar deposit account, the SC examined the purpose of the
law. It was established that the purpose of the foreign currency deposit law is to encourage
investors to put in their currency deposits in our banks to ultimately improve the economy
of the Philippines. Now, this purpose of the law can be achieved only if the investors or
depositors are such that their purpose of putting in their money in the bank is simply for
investment purposes, meaning long term investors and depositors. So, the SC asked this
very vital question: Is the transient tourist, who deposits a foreign currency account,
covered by absolute nature of the law? Is he covered by the protection accorded on the
foreign currency account? The SC said, again, invoking Article 10. When there is doubt,
because there is now a doubt with the transient tourist depositor who simply deposits or
simply opened the account in the bank on a temporary nature (...) defeats the sole
purpose of the law and that is to protect long term investors. So, in the light of the purpose
of the law, a doubt was created whether the transient visitor is covered, making cue the
provision on Art 10 to presume that the law-making body in enacting this law intended right
and justice to prevail. Now, right and justice can never prevail if the current judgment of the
court arising from the civil action (..) would be refused satisfaction. So it would be in accord
with right and justice that the deposit shall be not covered under the foreign currency
deposit act, and therefore not covered under the protection of the law and therefore the
bank was ordered by the court to release the bank account of the accused to the extent as
the judgment rendered in the civil case. These two cases illustrate the principle in case of
doubt; the court is obliged to presume that the law-making body intended right and justice
to prevail.
Let's go to Article 14, take care of 11, 12 and 13. Let's go to 14, 15, 16, 17. These are the
so called conflict of laws. What is conflict of law? When is there conflict of law? The conflict
of law, take note, otherwise known as private international law, is part of the local law. In
other words, it is part of the law of the particular country. Applying in the Philippines, it is
part of the law of the Philippines which directs its courts or other tribunals in cases
involving foreign elements, take note, whether or not to apply a foreign law. So it is part of
the domestic law, it is not international law. And this conflict of laws tool apply in cases
involving foreign elements because these laws direct the courts of that country whether or
not in that given case, a foreign law should apply or the local law should be applied. Now,
as a background, take note that every country and state has its own body of laws: laws in
the Philippines, China, Japan, every country has its own body of laws and each body of
law consists of two components, take note, consists of two components: number one is the
purely internal laws, meaning the laws applicable to cases which do not involve foreign
element and the so called conflict of laws rules which govern cases involving foreign
element. So in a country, each country has internal law and in contrast, conflict of laws
rule. Internal law governing cases which are purely internal, conflict of laws in governing
cases involving foreign elements.
When is there a foreign element in a case? When do you say that a case involved foreign
element? A case is deemed to involve foreign element when the case involves facts,
events or transactions which occur in more than one country or state and affected by the
various laws of the countries involved. So if the case involves transactions, events, facts
occurring in two or more states and affected by the various laws of the states, that case
involves foreign element and therefore should be governed by the so called conflict of laws
rules.
If a question involved, say for example, a contract is entered into between A and B both
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Filipinos. The contract is executed in the Philippines, involving a property located in the
Philippines, the contract is to be performed in the Philippines, in case of breach of
contract, the dispute between the parties can be resolved by embodying the applicable
internal laws. Why? Because there are no foreign elements involved. The parties are
Filipinos, the contract is executed in the Phils, the contract is to be executed in the Phils,
which will be performed in the Phils and the subject matter of the contract is in the Phils. It
does not involve a fact, event or transaction occurring in another country or two or more
countries. So this is the situation where the case is to be decided by the purely internal
laws.
On the other hand, if the parties are a Japanese and a Korean, the contract was entered
into in Hongkong, the subject matter is located in the Phils., the contract is to be performed
in the Phils., this is now a case of a dispute arising from this contract, so many laws are
involved depending on the countries where the facts, events or transactions occurred. Like
when there is an issue in the validity of the contract, there is now a question on what law
governs the validity of the contract when the contract was executed in Hongkong but the
subject matter is located in the Philippines, the contract is to be performed in the Phils., the
parties are Japanese and Korean. So, this is an example of a case involving foreign
element because the facts, transactions, events involved in the case took place or
pertained in two or more states and affected by the laws of the these countries involved. If
this happens, the solution to the issue of the case is the application of the so called conflict
of laws.
Okay, now, in the Phils, we have our own conflict of laws rule. Some of these rules, there's
so many, but for our purpose, we'll just limit ourselves in the provisions in the Civil Code
and I'm referring to Articles 14,15, 16 and 17. Let's just limit ourselves to these four. Let's
start with the first. Penal laws, take note, penal laws and those of public security shall be of
legal calling upon all who sojourn in the Philippines subject to principles of International
law and any stipulations. Art. 14 fleshes out the principle of generality in criminal law. It
simply means that everyone, whether citizen or not, foreigner, alien or citizen, so long as
he sojourns or lives in the Philippines, he is governed by the penal laws existing in the
Philippines. So if a foreign national, like a Russian, for example, a Cuban, for example,
who happens to be in the Phils and he commits a crime, he may be arrested, prosecuted
and convicted before Phil courts and he cannot invoke the defense that he is a foreign
national because whoever is in the Phils enjoying secure and safety in the Phils, owes
temporary allegiance to authorities of the sovereignty. And because of that, he owes of a
subject to penal laws and that of laws on public security and safety. So, citizenship is not a
defense. Everyone is governed and subject to our penal laws. The exceptions here are
those provided for under the principle of international law and some treaty stipulations.
Take the example of these principles of international law in order in your political law, your
head of states or representative of states are immune from criminal prosecution in this
country. So, if Barack Obama visits or takes a vacation in the Phils, in Boracay, and
commits a crime there, cannot be arrested, prosecuted and convicted before courts in the
Phils because of the principle in international law that a head of state is immune from
criminal prosecution. On the other hand, there are some treaties under the provisions of
which expressly provides on immunity to persons subject to the treaty. Like during the
existence of the US Bases in the Phils, it was one of the provisions in the US Bases
Agreement was that US service men are beyond the criminal jurisdiction of the courts.
That's why if you were part of the service men shooting to death some scavengers in the
US Base is Zambales, they were not prosecuted before Phil court because of the immunity
provision in the US Bases treaty. So these are the examples of the situation where these
are examples of the exemption of the generality principle of our criminal laws. You
distinguish this from the principle of territoriality. The principle of territoriality is fleshed out
under Art. 2 of the RPC. The principle of territoriality simply means that our courts have
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jurisdiction to try and prosecute offenders for crimes committed within the territory of the
Phils. So as long as the crime is committed within the territory of the Phils, as a general
rule, our courts have the authority to prosecute the offenders and to punish the offender.
The courts, Art. 2 of the RPC provides for the exceptions of territoriality. The first sentence
there which says that except as provided in the treaties and laws of preferential attention,
the provisions of the RPC shall be enforced not only within the Phil archipelago. This is the
so called territoriality principle we adhere to in the Phils. Not only, meaning first and
foremost, enforceable in the territory of the Phils but also outside of its jurisdiction in the
following cases. So, Art 2 of the RPC flesh out the territoriality principle of our criminal laws
as a general rule as well as it fleshes out the exception to generality which is the protected
theory in criminal law. The exceptions there, the enumerations there are based on the
protected theory in criminal law. Under which, the state of the country whose interest is
prejudiced by the crime as the authority to try and punish the offender. So, in other words,
in our country, in the Phils, we adhere to territoriality principle which says that our courts
have jurisdiction to try and punish criminals committed in our territory and that way of
exception, we also adhere to the protected theory in criminal law which says that although
the crime may have been committed outside the territory of the Phils, still our courts have
the power to prosecute and punish the offender in those specific instances because in
these specific instances, our interest is prejudiced by the commission of the offense.
(30:58)
What are the instances were our criminal laws have extra territorial application? So in
short our criminal laws have two kinds of application: the intra-territorial meaning
application within its territory and extra-territorial applicability beyond its territory. What are
these instances?
When an offender commits on board Philippine ship or airship so even if the ship is
already in the territory of the foreign country if the offender commits a crime on board a
Philippine ship or airship that crime maybe prosecuted before our court. Take note that
Philippine ship or airship referred to in Article 2 paragraph 1 is a ship or airship refers to
vessel, airplane or aircraft registered in Philippines and in accordance with Philippine laws
so long as the aircraft or vessel is registered in the Philippines that vessel or airship is
considered Philippine ship or airship in contemplation of Article 2 paragraph 1. Hmmm.
Number 2, Those who shall commit and those who shall forge or counterfeit any coin or
currency notes of the Republic of the Philippines or obligation and securities issued by the
government of the Republic of the Philippines. So if you forge or counterfeit money,
obviously that crime affects national interest and so even the act of forgery and
counterfeiting is committed beyond territorial jurisdiction of the Philippines, the offender will
be prosecuted before our court.
Number 3, Those who shall be guilty of acts in connection with the introduction of the forge
or counterfeit coin, currency notes, obligations or securities issued by government of the
Republic of the Philippines. So not only the forger or the one who counterfeits currency or
currency note, obligations or securities issued by the government but also those guilty of
introducing or transporting into the Philippines a forged coin, currency, obligations or
securities issued by the republic of the Philippines.
Number 4, when a public officers or employees should commit any offense in the exercise
of his official function. This refers to public officers committing offenses abroad even if the
crime is committed in the foreign country provided in the exercise of their official function.
So if you are mayor or governor while in Japan having a vacation and somehow cannot
resist sexual urges and committed an act of sexual harassment in Japan, that is not
covered. Unless you tell me that sexual harassment is an exercise of official function.
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(class laughing). He may be prosecuted in Japan but never in our country because it
should be related to his official function.(a student clarified counterfeit coverage if it
includes fake foreign cheques - answer is NO! :).
The last one is when one commits an offense classified under Title 1 of Book 2 of Revised
Penal Code so called crimes against national security and the laws of nation. What are
these crimes? Treason, espionage, disloyalty, in times of war, provoking war, piracy, and
mutiny. These are the crimes falling under Title 1 Book 2 of Revised Penal Code. So take
note that for this exception to apply the crimes must be those listed under this Title and not
other crime. So you just have to memorize the crimes falling under Title 1 Book 2. The
crime against national security and laws of nation. Now, there are two principles in
territoriality in criminal law.
Two principles involved in when we talked about territoriality. The so called subjective
territoriality principle and the objective territoriality principle.
What is meant subjective territoriality principle? Subjective Territoriality principle means
that our courts have jurisdiction over crimes which began in the philippines although
completed abroad so if the crime starts here, our court can prosecute and penalize the
offender even if the crime was completed abroad or outside our territory.
On the other hand, the reverse is true under the objective territoriality principle, our court
has jurisdiction to try and punish the offender for crimes completed in the philippines
although began abroad. If the crime was begun abroad but completed in the philippines,
we also have jurisdiction.
For under the theory of subjective territoriality principle we have the case PP vs Tulin. This
involved the crime of piracy when a vessel known as MT Tabangao while sailing in the
coast of Mindoro was seajack. Not highjack.(class chuckling). Seajack by pirates using
force violence. Fully armed pirates. When the pirates were able to board the vessel, they
forcibly took the vessel to Singapore. And while in Singapore, the pirates transferred the
(sic) of MT Tabangao to another vessel in Singapore. Based on the evidence induced in
the trial, while the vessel is in Singapore, it was Cheong San Hiong, who supervised the
transfer of petroleum products from MT Tabangao to another vessel. Now, to cut the long
story short, the accused were arrested because they went back to the Philippines after the
piracy. After the trial, the court convicted all the accused. All of them as principal and direct
participation but Mr Hiong was convicted only as accomplice to the crime. Not direct
participation. Anyway, he was convicted. Dissatisfied by the judgement, Mr. Hiong
appealed. And when the case went all the way to the supreme court, the main argument of
Mr. Hiong was that he can not be convicted by the Philippine government because his
involvement in the commission of the crime charged was committed in the territory of
Singapore therefore beyond the territory of the Philippines. And so that, pursuant to the
territoriality principle of criminal laws of the Philippines , our courts have no jurisdiction to
try and punish him for the crime of piracy.
How did the supreme court resolved this issue? The Supreme court resolved these issues
on two counts:
Number 1, the Supreme Court said while the participation of Mr Hiong was only committed
in Singapore beyond the territorial jurisdiction of the Philippines, it was also established
that the crime of piracy started in Philippine territory when the vessel was seized by the
pirates while sailing off the coast of Mindoro. And when the pirate took over, the pirate
brought the vessel to Singapore. The participation and involvement of Mr. Hiong was part
of the entire criminal process and therefore, he may prosecuted and punished before
Persons Scutarius Legis
Philippine court although his individual participation was committed only in Singapore.
Second and I think this is more compelling justification while Mr. Hiong was convicted. The
Supreme Court said Hiong must be convicted for the crime of piracy. Under Article 2 of the
Revised Penal Code, the provisions may be enforced not only within the Philippine territory
but beyond its jurisdiction against those who commits any offense classified as crime
against national security or the laws of nation. Piracy is one of these crimes. So it falls
under the exception.
The objective of territoriality principle is illustrated under US vs Bull. This involved the
prosecution under special law that punishes any person who transports animals without
taking the necessary precautions or measures to protect the animals from any harm. Mr.
Bull was the master of the vessel which transported a number of cattle from the country for
Formosa, now known as Taiwan. The shipment started in Taiwan sailed to the Philippines.
When the vessel reached the philippine waters, the vessel was seized and Mr Bull was
prosecuted under special law. One of the arguments raised by Mr Bull in his effort to get
out is that the crime was committed in Formosa. When the carabao subject of the case
where transported from Formosa to the Philippines. So he argued that Philippine court has
no jurisdiction to try him under this law. But he was rejected by the Supreme court. The
Supreme Court said that while it is true the crime started in Formosa, it is also established
that the crime was the continuing offense. And once they reached Philippine territory, it
makes him liable under our law. So the principle here is even if the crime began in another
country so long as it continued and while in the philippine territory the crime still subsist,
our court shall have jurisdiction under the objective territoriality principle in criminal law.
(foot stomp by torregosa =p). (student asked regarding diplomats committing these crimes.
Torregosa defers to answer and asks to refer to our political law professors)
Article 2 of the Revised Penal Code, the territoriality principle said that our penal laws are
enforceable in our territory to anyone who sojourned in the Philippines is of course subject
to the treaty stipulation and laws of preferential (sic) and again this refers to the head of
state and some treaties where immunities from prosecution is provided. There are some of
exceptions to territoriality.
Let's go to Article 15. Article 15 is our conflict of laws rule on status, family rights and
duties, condition and legal capacity. In other words, in so far as Philippine law is
concerned, a person's status, his family rights and duties, its condition and legal capacity
are to be determined by the national law. Article 15 (sic) principle of nationality theory. It
says there that laws pertaining to (finger flicks. Torregosa forgot what the code says) - laws
concerning family rights, duties, status, condition and legal capacity shall be binding by
Filipino citizens although living abroad. Okay. So, obviously and literally, 15 makes express
reference to Filipino citizens that means where ever a Filipino may be found. Somewhere
else. As far as his family right, duties, status, condition and legal capacity, these are
always governed by its national law - that is Philippine Law. So if a Filipino is married, in
the eyes of Philippine law, he is married where ever he may be. Fifteen made express
reference to Filipinos.
This is the ruling in the case of Republic vs Crasus Iyoy. This involves a marriage between
two Filipinos. Before long, the husband realized that his wife is hot tempered and
extravagant. On the other hand, the wife discovered that her husband is good-for-nothing.
A bum. Alleging that because of financial difficulty, the wife left for states. While in states,
the wife obtained a divorce. Married there and eventually became an American national.
Occasionally, she visits the Philippine to see her family - her children. When Mr. Crasus
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came to know of his wife's marriage abroad. He filed an action for declaration of nullity of
his marriage. Her wife however denied the allegation of Crasus and counter alleging that
Mr. Crasus is the one guilty of psychological capacity. Although, the wife also asked the
court to declare their marriage a nullity. But she just can not accept that she is the one
guilty. Now, the trial court and CA ruled in favor of Mr. Crasus. Invoking article 26 of the
Family code, the supreme code said there is no possible reason why the benefit of Article
26(sic). When, a marriage between a filipino and thereafter a divorce is validly obtained
abroad by the foreign spouse, the capacity to remarry - the Filipino spouse is also capacity
to remarry(sic much =) ). That's Article 26. So invoking this provision, the trial court and
sustained by CA ruled declaring the marriage nullity and void. The Republic of the
Philippine disagreed and so the appeal was filed to the supreme court. The supreme court
reversed the decision of trial court and court of appeals. The supreme court said Article 26
applied only in a situation is between a filipino and a foreigner. In this case, Mr Crasus and
his wife are both Filipinos. While the wife obtained a divorce abroad and became a
naturalized American citizen, the divorce was obtained while the wife is still a
filipino(another sic). By virtue of the Article 15 of the Civil Code, the wife in so far as her
status is concerned, is always governed by Filipino. And because under our law, we do not
recognize divorce as a mode of dissolving marriage, the wife remains to be married to the
husband. And so they can not invoke the benefit under Article 26. This illustrates the
principle fleshes out in Article 15 - A filipino, where ever he may be, is always governed by
its national. The question is what about the families? What about the issue involving
status, capacity, family rights, duties, conditions involved a foreigner, not a Filipino?
Suppose a foreigner comes here. He is involved in a case and the issue pertains to the
status, capacity, condition, family rights and duties. How is our supreme court rules on the
issue when he/she is a foreigner? Does Article 15 apply so that as far as the issue of
status, family right and duties, condition and capacity of the foreigner (sic) matter will also
be resolved for the basis of foreigner natural law? When 15 expresses only to Filipino
citizens.
This is shown in Recto vs Harden. Atty. Claro M. Recto was engaged by Mrs Harden as
her counsel in the case she filed in the Philippines for the purpose of protecting her share
in the conjugal properties that she had with her husband , and also to increase her support
she is getting from the conjugal partnership, in contemplation of a petition for divorce that
Mrs Harden intended to file against her husband. So, the parties, Claro Recto as the the
lawyer and Mrs Harden as the client drawn up an engagement agreement, retainership
agreement, wherein Mrs Harden undertook to pay 20% of whatever Mrs Harden will
recover from the conjugal property as and by way of Attorney Recto's attorney fees. (clear
throats).. But contrary to her undertaking under the retainership agreement, Mrs Harden
refused to pay Atty Recto the stipulated 20% atty fees. This prompted Atty Recto to go to
court(high-pitched ending by Torregose =)). And to compel Mrs Harden to pay and
complied with the stipulation embodied in their retainership agreement. The primary
defense interpose by Mrs. Harden was that the contract in so far stipulated is void because
the contract entered into in consideration for obtaining a divorce degree. Under the
philippine law, divorce is not allowed so therefore this kind of contract follows to be also
void. And therefore, it can not be enforced against Mrs. Harden. The Supreme Court
favored Atty Recto. So, how did the supreme court resolved the issue on the validity of the
retainership agreement? Supreme court resolved this issue into two forms:
Number 1, the Supreme court said, contrary to the contract(sic sic sic) securing a divorce -
this is not so. The services of Atty Recto where obtained by Mrs Harden, not in
consideration for divorce degree to be obtained abroad but only for the purpose of
protecting the interest of Mrs Harden in the conjugal partnership.
Number 2, even, take note, even if it is considered of the purpose of the engagement is to
Persons Scutarius Legis
obtain a divorce degree abroad, the Supreme Court said that Mrs Harden and her
husband were both american citizens. And since they are both American citizens, they are
governed by their own national law - pursuant Article 15 of the Civil Code. And since,
divorce is recognized as valid in the US, that agreement entered into in consideration
obtaining divorce abroad, is valid in so far as Mrs. Harden and her husband is concerned.
In this case, the Supreme Court made a definitive ruling that Article 15 of our Civil Code is
equally applicable to aliens or foreigners. In other words, in so far as an alien's status,
family rights and duties, conditions and legal capacity, all these are governed by the alien's
own national law. (foot stomp). So if an alien comes here and there is a case in court, an
issue to his capacity - that issue should be determined by his own national law; not by our
own law. So that if there is a contract and action is enforceable and the one of the
defenses raised was that the contract is not enforceable because one of the parties, a
foreigner, is minor. And therefore, no capacity to enter into that kind of contract. The legal
capacity of the minor, who is a foreigner, should be determined by his own law. So that for
example the minor is a Japanese national and he enters a contract in the philippines, and
he is fifteen. But under Japanese law, 15 is age of majority, the contract is valid in so far as
the foreigner is concerned. Because, by virtue of under his own law, Japanese law is
legally capacitated to enter into that contract even if under Philippine law, when the
contract is executed, he is a minor. Pursuant to Article 15 of civil code. That is why, when a
foreigner intends to get married in the Philippines, there legal capacity is to be determined
by their own law. So it is not unlikely that a foreigner who is still 15 years old can legally
marry in the Philippines even if he is not qualified in the philippines being below 18 years
old. If under his own law, as certified by their consular official, he is already at legal age
because in their country, 15 is there marrying age. (clear throat)..
Vandorn
This invovles a filipina wife and an american husband, they were married in hong kong and
they had properties in the philippines, there after a divorce decree was obtained abroad,
after a decree of divorce was obtained, the husband returned to the philippines. And filed
an action for allowance of administration, he asked court that he be appointed as the
administrator of their business in the philippines. He said that being the husband he has
the right to participate in the administration of their conjugal business. As of by way of
defense the wife argued that he cannot anymore file an action for administration for their
conjugal property because
1st: In the petition for divorce filed abroad, the husband acknowledged that the acquired
no property (blank)sic. knwoledge
and 2nd: by virtue of the divorce decree obtained abroad,the husband can no longer think
as the husband of the wife, for his part.
With the assistance of the brilliant lawyer in philippines, the husband (american), argued
that while the divorce decree was obtained abroad, the same is not recognized in the
philippines because under philippines divocre is against our public policy, and (born
forth?)sic. in the eyes of philippine law, he remains to be the husband of the filipina wife,
and as such he is entitled to administer the business or (aplease?)sic. if he is not the
administrator, the wife shoud be made to account, for the profits earned out of their
conjugal business. In this case the supreme court said, "under art.15 of the civil code, only
filipinos or governed by the policy prohibiting laws. however aliens may validly obtained
the divorce of law provided that divorce is valid in accordance with their national law." So
again, this case illustrates the principle than the (blank)sic status. because being a
divorced or married is a matter of status. A status of being married or the dissolution of the
marriage being a divorce, is a question of status, and they are governed by the national
law of the individual concerned. So in this case the supreme court said divorce is
(blank)sic. for the filipina , meaning not valid, in (blank)sic. of the american, the husband, is
valid because the laws of nevada, the U.S., recognizes the divorce and therefore he
cannot anymore file the action of administration in his capacity as the reported husband.
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Similar to this is observed in the pilapil case, its a very interesting case. The business has
been their, even before the divorce, but when they filed the petition of divorce to the U.S.,
they both represented in the court for convenience that they acquired (no?)sic. property
during the cohabitation that this is normally resorted to by the parties for purposes of
convenience, because if you include issue of property in divorce it would usually take a
longer process, one of the grounds invoked there in denying the petition is the american
husband was guilty of estopel, because in the divorce proceedings, he himself admitted
that there were no properties acquired, and how come now that in this case he would
claim that that business is conjugal. So he was barred, there was a principle of estopel.
When you represent something, and someone acts on your representation, believing in
good faith of your representation, you cannot later
turn around and disclaim your representation for your benefit, that's bad faith. So if you say
something that there was no property, that representation binds you, you cannot anymore
turn around later on and say that there were properties, because that is estopel. So this is
what happend to the american husband.
Because you are now questioning the status of the right, this is precisely the reason why
this case with the vandorn created so much controversy. Because the decisions in this
cases led to one ludicrous situation where one spouse remains to be married to another
who is no longer his or her husband. In this situation now if you look at the decision of the
vandorn case, the (blank)sic. So a very good point is would the decision be the same, if it
was the other way around, because the wife who filed the petition for administration after
the divorce was obtained by the husband. Thats a very interesting, if you look at vandorn it
would have been that the wife remains to be married, but of course it is unfair, that is why
to commit this,while he was (absurditing?)sic. we have art. 26 of the family code where it
says now that if the foreign spouse obtain a valid divorce decree abroad, that capacitates
the filipino and therefore the validity of the divorce binds not only the foreign spouse but as
well as the filipino spouse. So your question now is no longer possible under the family
code of the phil. because once a divorce decree is obtained by the foreign spouse abroad
that loses the effect of dissolving the marriage and both of them ceases to be spouses to
the other, So lets take up the pilapil case, pilapil was married to a german national their
marriage was solemnized in germany, and not long after the german husband obtained a
divorce decree in germany, after the divorce decree was issued, the german husband went
to the philippines and discovered that even during their marriage, played with another
team, I think twice? twice, so driven by misplaced jealousy, the german husband instituted
a criminal complaint of adultery against emilda. One of the critical issues involved there
was whether or not the geman husband is considered a offended spouse who is entitled to
initiate for complaint to adultery, because adultery unlike any other offense, can only be
instituted by the offended spouse, unlike murder, theft, robbery, where anyone can initiate.
but adultery (blank)sic. just the moment he (prosecuted?)sic. by the offended spouse
because in these kind of cases which are very private, the law affords the offended spouse
in option of suffering in silence, the offended spouse who may not like to be exposed to
public ridicule, may refer to suffer in silence, or come forward and prosecute. now, the term
there offended spouse, it was argued by the defense, that the husband cannot be qualified
as an offended spouse as to initiate the complaint because of the decree of divorce
obtained in germany. On his part the complaining german argued that while a decree of
divorce was obtained in germany, that divorce decree is not recognized in the phil and
therefore in the eyes of philippine law he is and should be considered as an offended
spouse. This argument was rejected by the supreme court. The supreme court said, while
our policy, while divorce is against public policy of the philippines, pursuant to art.15 of the
civil code of the philippines, that divorce obtained in germany is binding (at least?)sic. in so
far as the german husband is concerned because in so far as the status is concerned, he
is governed by the german law and the german law is recognizes divorce, so obviously a
little improvement of the vandorn ruling, the supreme court in pilapil made a categorical
declaration that the recognition of divorce is partial in counter only in so far the foreign
Persons Scutarius Legis
spouse is concerned. and it is because of these two
rulings that the framers in the family code, the framers who drafted the family code, made
it important to insert a provision on paragraph 2 of art.26 which now recognizes the validity
of the divorce decree obtained by a foreign spouse abroad, in so far (concerned?)sic. as
the filipino spouse, who is now capacitated to re marry but subject to certain conditions.
The same ruling was observed in the later case of Llorente. Llorente (involved?)sic. say a
filipino service (lady?)sic. whom after the war served the U.S. and leaving his wife in the
phils. He stayed there for a long time in the U.S. After sometime he was able to obtain an
official vacation. he returned to the philppines, only to discover his wife, alone and lonely
co-habitated with his brother, considering a mans ego bruises through deeper than the
flesh. The husband refuse to accept the wife back and so he returned to the states,
especially he came to learn that the wife was pregnant by the brother. and so he returned
to the states, while there he acquired american citizenship and often times visited the
philippines, during one of his visits he met another girl and they got married. Eventually
this guy died. So as it is usual in the philippines society, the heirs now are scrambling over
the spoil. All according to the will, because before the husband died, before Llorente died
he executed the will bequeathing all his estate to his second wife(alicia) when he died of
course paola(the first wife) the treacherous paola questioned the will of Llorente claiming
that, the marriage between Llorente and alicia was void because the decree obtained by
Llorente when Llorente obtained the divorce decree abroad is void, invoking public policy
against divorce. The supreme court said that when the divorce decree was obtained by
Llorente, he was already an american citizen and therefore he is governed by his own law.
His national law, and because under U.S. laws divorce is recognized. So far as Llorente is
concerned he was qualified to marry alicia. So in that case the supreme court said that the
divorce decree obtained by Llorente is valid, pursuant to art.15 of the civil code on
nationality theory. Although the supreme court said in so far as the (intesic?)sic. validity of
Llorentes will then the lease should be looked into the trial court and for this purpose the
lease remanded thorugh the trial court for further (blank)sic. but in the issue of the validity
of divorce the supreme court sustained its validity given that Llorente was already an
american citizen when the divorce decree was obtained, take note that it is not enough
when divorce decree is raised when the divorce decree is invoked in any case of the
philippines, by way of defense of a basis for a claim, it is not enough to prove that a
divorce decree was obtained. So it is not enough to present a copy of the divorce decree,
because under the cases, under the rulings lay down the cases of vandorn and pilapil and
Llorente, for the two cases, vandorn and Pilapil, the supreme court was explicit in holding
that the divorce decree obtained by the foreign spouse or foreigner aborad is valid
provided it is valid in accordance with their repective national laws. What is the veribance
in this rule, the supreme court said, it is not enough to prove the existence of the divorce, it
is equally important to prove the national law of the alien spouse concerned so that it can
be determined if divorce decree obtained abroad was really valid in accordance with
foreign spouse national law.
There was one ,This was one of the issues raised in the case of Recio. Recio was
previously married with an australian citizen in (blank)sic. got divorced, and then he
obtained australian citizenship and remarried grace garcia. When garcia realized that
when he was married the first time with samson(previous wife), she filed a petition for
nullity of the marriage in the basis of bigamy, as his defense recio argued that he could not
be guilty of bigamy because during his marriage with grace, his marriage with samson was
already divorced, it was already dissolved by virtue of the divorce decree. The supreme
court said it is not enough to prove the existence of the divorce it is equally important to
prove the national law. which is the national law of the parties, the national law of the
foreign spouse to determine if the divorce decree was really valid and with accordance that
national law. As for the issue for his capacity to contract a subsequent marriage with grace,
the supreme court said, there was no adequate proof that under the law of australia under
which the divorce decree was obtained. Recio was capacitated to remarry because there
EH409
are two kinds of divorce, the absolute and relative. The absolute capacitates to remarry,
relative does not. Mr. recio failed to do the nature of the extent of divorce decree obtained,
so in this case there was failure to (aduce?)sic. the necessary evidence to prove the
national law of the party concerned as well as the capacity of the party to contract
marriage. The supreme court suggested that it was already easy for Recio to present the
certification of legal capacity by hi consular office before he married grace, because under
the family code when a foreigner who intends to marry in the philippines instead of
presenting the birth certificate because if you apply for marriage license you are required
to submit your birth certificate to prove that you are already of marrying age. Legally
capacited to (learn?)sic. In case of a foreigner the foreigner is not required to submit a
birth certificate but instead the foreigner is required to submit the so called certificate of
legal capacity in art. 21 of the family code. The certificate of legal capacity is issued by the
foreigners consular official station in the philippines and that certificate of legal capacity
shall state that under their own law This person, foreigner is qualified to marry for capacity
to marry. and Mr. recio failed to do this.
So that is art.15 nationality theory that governs the individuals status. Status refers to ones
marrige, if he is divorced, single, legitimate, illegitimate, widow, widower. Status in the
community his profession, gender, any personal circumstances of the individual that falls
under status. Take note that in so far legal capacity which is also governed by (blank)sic.
legal capacity, there are exceptions, there are instances when the person or indivduals
legal capacity may not be governed by art.15 meaning he may not be governed by the
persons national law but some of the laws. What are these instances? so far as legal
capacity
1st: When the issue involves legal capacity to involve them, dispose,
sell,mortgage,(blank)sic. property so if the issue is the parties or the persons legal capacity
to sell property, to mortgage the property, to convey to assign to dispose, legal capacity is
not governed by national law. But by the law of the place where property is located under
art. 16. what does art.16 says? Real as well as personal property is governed by the law of
the place where it is located. (blank)sic. is the principle. So legal capacity now is governed
by (blank)sic. principle no longer under nationality theory by virtue of art.16. So legal
capacity is governed by national law theory under art.15 if the contract does not involve
property, because of the contract involves disposition of
property, conveyance, sale, assignment of property, all of these are governed by (lex
rayscitate?)sic. so if a party to a contract of sale to a property whether real or personal is
japanese national, but the property is located in the philippines, the issue is whether or not
that japanese national is capacitated to enter into that contract of sale, under the japanese
law he is qualified because 15 is their majority age, but under the phil law he is a minor. He
is of age in japan, minor in the philippines. By virtue of art. 16 par.1 (lex rayscitate?)sic.
says the properties located in the philippines, his legal capacity to enter into that contract
of sale of motor vehicle for example in the philippines is governed by philippine law. and
therefore he is not capacitated, but if the contract is something arbital, disposition,
conveyance, you apply in art.15. if you enter in the contract like service contract, linggam
massage contract, this does not involve property, service contract. you apply art.15.
2nd: instance, the legal capacity to inherent is not governed by art.15 neither it is in art. 16
but governed in art. 1039, this now involves inheritance so the rules of succession apply
under art.1039 a capacity of an heir to inherit is governed by the national law of the
decedent. So (blank)sic. nationality have the heir, not the law of the place of the estate is
located. but the law of the national law of the person who succession is under
consideration meaning the decedent from whom the heir is supposed to (blank)sic.
3rd: Capacity to marry, as a gen, rule capacity to marry is governed by the law of the place
where the marriage is celebrated, lex luches celbrationes, art 26. of the family code, the
marriage solemnized abroad of married a foreigner is valid here. valid there, valid here. So
legal capacity for the contracting parties to marry is generally determined by the law of the
place where the marriage is solemnized of course there are exceptions. If one of the
Persons Scutarius Legis
parties is filipinos, there capacity is determined by philippine law. going back referring to
art. 15. by virtue of art. 26. These are the instances, Property, capacity to inherit, legal
capacity to marry and the
4th: the capacity to make a will, is governed by lex luches celbrationes, national law of the
(testatal law?)sic. Capacity to execute a will, it is either lex luches celebrationes pursuant
to art. 17, nationally, the national law of the executive legislator or the law (domicile?)sic. of
the attested art. 815. of the civil code, the law on succession. These are the four instances
where legal capacity is not governed by art.15 of the civil code. Lets go to art.16. (Lex rei
citi?)sic. under the first par. all matters pertaining to property are governed by lex rei citi
like conveyance of property,sale, mortgage, disposition of property. The forms of the
contract, evidencing these transactions, take note, even the formalities and solemnities
involving the transactions are governed by lex rei citi, so a sample in a contract of sale of a
piece of land, the forms and solemnities of the contract of sale whether the contract is valid
in (extrinsictal?)sic. meaning in forms is not determined by lex luches celebrationes art.17
that normally the forms and solemnities of the contracts are governed by the law and the
place the contract is executed but by way of exception if the contract involves disposition,
encumbrance, conveyance, assignment, sale,apparently the forms and solemnities of the
contract of this transactions are governed by lex rei, also the matters of ownership, title,
prescription, accretion, registration, prescription, these are matters governed by lex rei citi
including the
legal capacity of the contracting parties, so generally if the transaction involves property,
lex rei citi (uprise?)sic. for all aspect of the transactions, be it the intrisict or extrinsict,
capacity of the contract, subject matter of the contract, they are all governed by lex rei citi.
Exceptions for lex rei citi: instances where lex does apply, even if a property is involved.
number 1: even if a property is involved but the issue is about succession whether
(attestive or intestive?) sic. lex rei citi does not govern, in otherwords in matters of
succession of course succession presupposes property, the estate. That's why there's
succession because its about inheritance, it always include property, the dispute involved
is property but the issue about is succession, if it is about succession then it is not
governed by lex rei citi but you apply the 2nd par. of art 16. national law of the decedent
governs, in so far specific items are concerned. Intrinsict validty of these transactions,
forms and solemnities of the will, governed by art. 17 lex luches celebrationes, so
succesion testate or intestate do not apply lex rei citi
number 2: exception, if the property is casual or incidental, take note, the transaction
involves property but the involvement of the property there is only casual or incidental,
because the main issue involved the contractual relations of the parties, you dont apply lex
rei citi but apply the rule in ordinary contract. Meaning in so far as legal capacity shall
apply art.15 in so far as formality of the contract you apply art. 17 because this is governed
by ordinary contract not (blank)sic. property, what is an exception? simple example, a
contract is entered into between X and W, the contract being that X a successful architect
is to design a majestic mansion for W. Equipped with all the landscaping and interior
decorations, this is a contract involving a property, landscaping and interior designing, it
involves the property, but the involvement of the property here is only casual and
incidental, because the real nature of transaction is only between the contract service
between W and X, so this kind of contract is not governed by lex rei citi because the
property their is only incidental, the real (agreement?)sic. is contract of service which is
governed by the rule of ordinary contract so again the issue is about legal capacity applied
art. 15, formalities of the contract apply art. 17.
Aah, exception to Lex Rae Sitae, I already gave you two exception(s). The third one: the
third exception to Lex Rae Sitae is when the case involves property but the issue does not
concern the validity of ownership of title but the issue involves the authority of the party to
sell or dispose of the property. This was the ruling in the case of Laurel vs. Garcia.
Salvador Laurel vs. Garcia, involving the intended disposition of the nipongo property
EH409
located in Japan. This property was acquired by Philippine government pursuant to the
reparation agreement between the Philippine government and the Japanese government.
This was intended as payment for the damage the Japanese government has caused the
Philippines during the world war. Now, the original purpose of the property was for the, for
the use of Philippines consular office or embassy in Japan but during the time of Corazon
Aquino, some quarters, the government itself, intended to dispose of the nipongo property
which was opposed by several quarters; one of whom was the group of then Vice-
President Salvador Laurel. So the issue there is whether or not the property can be validly
sold or alienated or disposed of, given that it is a property of the Republic of the
Philippines. One of the arguments advanced by the oppositors, meaning those who
oppose the disposition of the nipongo property was that under Article 420 of the Civil
Code, the nipongo property was a property of public domain intended for some public
service. So, based on this provision, they argued that being a property of public domain,
the nipongo property cannot be alienated and cannot be a subject of a commercial
transaction like sale or disposition. For their part, the government argued that, Article 420
of the Civil Code relied upon by the oppositors, does not apply because the property in
question is located in Japan. And the Article 16 of the Civil Code of the Philippines, real or
personal property is governed by the place of the place where the property is located, LEX
RAE SITAE. How did the Supreme Court resolve this issue? The Supreme Court said,
there is no conflict of laws situation involved in the case. Lex Rae Sitae applies only
when the issue concerns with the validity of ownership or title of property. In this case,
there is no dispute about ownership and title because all the while, the parties agree that
the property belongs to the government of the Philippines, so there is no issue as to the
ownership or title of the property. The only issue there was the authority of the party, (in)
this case, the government to sell or dispose the property. So, if the issue is only about
authority of the party to sell, dispose or convey the property, this is not governed by the
principle of Lex Rae Sitae. So, take note of this case of Laurel vs. Garcia. So, these are
the exceptions to Lex Rae Sitae.
Lets go to the second paragraph of Article 16. The second paragraph of article 16 states
that, however, interstate or testamentary succession, both as to the order of succession,
amount of successional rights and the intrinsic validity of the testamentary disposition are
governed of the national law of the person whose succession is under consideration,
regardless of the nature of the property and regardless of whether the property, of where
the property is located. Okay? As I said, this is the exception to Lex Rae Sitae, since this
involves testamentary and interstate succession, you apply the nationality or the national
law theory. You apply the law of the country which the testator or the decedent is a citizen
but take note, that by express provision of the second paragraph of Article 16, the matters
governed by the national law theory, take note, the matters which are governed by the
national law of the person whose succession is under consideration, refer only to the three
items enumerated there: the order of succession, meaning who succeeds first . Order of
succession, because there is order of succession, in the absence of one, the second in
rank inherits or amount of successional rights: how much one gets to inherit? In the law of
succession, there is also corresponding percentage to which an heir is entitled to inherit; if
you are the wife, how much; (if) you are the legitimate son or child, how much; illegitimate,
how much? These are matters concerning amounts of successional rights governed by
national law of the decedent or the intrinsic validity of the testamentary provisions of the
will. This concerns with the provisions in the will like, in the will, you, the testator may
provide that part of this estate will go to his friend or to his devisee. You are allowed to
dispose a portion of your will to anyone who you, you did think to be the recipient of your
generosity. Validity concerning the dispositions or the testamentary provisions in the will,
by express provision of the second paragraph of Article 16 is governed by the principle of,
by the national law of the decedent. These are the only thing(s), items specifically
mentioned under the second paragraph of article 16 governed by the national law. So,
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question: What about the capacity of an heir to inherit? The question of whether one is an
heir? The question of whether one may inherit from another? How is the court supposed to
resolve this issue? Although not mentioned in the second paragraph of Article 16, by
express provision of 1039 of the Civil Code, the capacity of the heir to inherit is governed
also by the national law of the decedent. So, the three items under the second paragraph
of Article 16 and 1039 with respect to the capacity of an heir to inherit. These matters, you
will know, are matter concerning the intrinsic aspect of the will. Intrinsic, meaning the
substantive aspect of the will because the extrinsic aspect of the will, the forms and
solemnities of the will, are not governed by national law theory, because these are not
covered under the second paragraph of Article 16 but somewhere else, in Article 17.
So, lets go to Article 17. Formalities, forms and solemnities of contracts, wills and other
public instruments are governed by the laws of the place where they are executed. Article
17 espouses the principle of Lex Loci Celebrationis: law of the place where the contract is
executed. Take note however, that by express provision of Article 17, what is covered and
governed by Lex Loci Celebrationis, is only the extrinsic aspect of the contract, meaning
the forms and solemnities but not the intrinsic aspect of the contract: the substance of the
contract. So, what governs the substantive aspect of the contract, the substance of the
contract? Like the nature of the contract, the contents of the contract, the terms and
conditions of the contract, the subject matter of the contract? These do not pertain to forms
and solemnities but matters that go into the very essence of the contract. So, there is an
issue as to validity of the subject matter. There is an issue as to the validity of the terms
and conditions embodied in the contract. How is the court supposed to rule on this issue?
Of course, not to the Article 17, because 17 applies only to forms and solemnities. There is
no provision in our Civil Code or any law for that matter which governs the conflict of those
rules involving the intrinsic aspect of those contracts. But writers are one in saying that,
when there is no express provision in our laws, from the, from, it can be inferred, it can be
inferred from Article 1306 of the Civil Code, that there is a law that governs the intrinsic
aspect of the contracts. Based on Article 1306 of the Civil Code, what does it say? It says
that, that the contracting parties may establish any stipulation, process, terms and
conditions, provided they are not contrary to law, good morals, (and) public policy. 1306
espouses the principle of liberality of contracts, meaning the parties are free to stipulate
and establish whatever terms and conditions that may deem fit, subject to only, subject to
limitation that [sic] their clause and contracts, their stipulations, terms and conditions are
not contrary to law, orders, public policy and public morals. So, since our policy is liberality,
meaning, we should respect the intention of the parties, the wishes of the parties. The
writers are of the mind, that in so far as the intrinsic aspect of the contract, the term and
conditions, the process, the contents of the contract, these matters should be governed by
the laws expressly intended by the parties: Meaning, the parties, the laws, intended by the
parties to govern the intrinsic aspect of the contract. How do you determine the law
expressly agreed upon by the parties to govern their contractual relations? Youll know that
in most contracts, theres a standard provision on the, uh, this provides for the, uh, this
provides, theres a standard provision which provides for choice of law clause, choice of
law clause. It is a provision in the contract which now become standard in, especially in
International transactions. Where the parties expressly agreed in the contract what specific
law the agreed to apply in case of dispute arising from the contracts. So, with respect to
the intrinsic aspect of the contract, the court will just have to examine the contents of the
contract and determine if there is a choice-of-law-clause. If there is a choice of law
clause, then the court will just have to apply the law chosen by the parties in so far as the
issues concerning the intrinsic aspect of the contract. This is known as the Lex Voluntatis.
What happens if the contract does not contain the choice of law clause? Maybe due to
sheer oversight or ignorance. The parties or the lawyers failed to incorporate the choice of
law clause in the contract. And so that there is an issue involving the intrinsic aspect of the
contract, the court now will have difficulty determining which law to apply when there is no
choice of law provision. In that sense, the law expressly intended by the parties as
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evidenced by choice of law provision in the contract, the court may apply the Lex
Intentionis Principle or the law impliedly intended by the parties. So, no express stipulation
as to the specific law to apply, but base on the circumstances of the case, of the contract,
the court can infer that the law the parties impliedly intended to apply the certain law. How
is the court supposed to determine the implied agreement of the parties, in the absence of
an express intention or express clause in the contract? The court may apply the principle,
the most significant relationship theory. What is this most significant relationship theory?
The court will have to determine the significant components and aspects of the contract
like negotiation, the place where it was executed, the place where the negotiation took
place, the place where the contract is to be performed, the place where the parties are
citizens, the place or domicile, the place where the subject matter of the contract is
located. By examining all the significant components of the contract, the court may be able
to ascertain that the parties do not express had impliedly intended to apply the law of that
foreign country. Say for example, if the negotiation took place in Country A, the parties are
residents of Country A, although the contract was executed in Country X, but the contract
is to be executed in Country A. You will know that the most, most significant aspect of the
contract, the residents of the parties, the location of the subject matter, the performance of
the contract, most of the significant components relate to Country A. And therefor, applying
the Principle of Most Significant Theory, the court may now infer that base on these
circumstances that the law impliedly intended by the parties is the law of that Country A,
where most of the significant components of the contract pertain. So, thats how the law,
the court supposed to determine Lex Intentionis. Supposed that the significant
components of the contract are evenly distributed or cannot be determined with certainty,
how is the court to determine or choose the law applicable? There is a third option for the
court, and that is to apply the law of the country where the contract is likely to be uphold, to
be upheld as valid. Again, the principle here is liberality of contract, therefore the law
should, or the court respect the wishes of the parties. Thats the intrinsic aspect of the
contract.
Now, in so far as the intrinsic aspect, Lex Loci Celebrationis governs but there are
exceptions. There is an exception. There are exceptions. Number one exception,
exception to Lex Loci Celebrationis, in [sic] forms and solemnities of contract. Number
one, if the contract involves the conveyance, encumbrance, disposition or alienation of
property. As I said, these matters are governed by Lex Rae Sitae, so, if a contract involves
the sale of a property, the forms and solemnities of that contract of sale, is not determined
by the law of the place where the contract is executed, Lex Loci Celebrationis but Article
16, Lex Rae Sitae. Take note of that. Number two, if the place of execution is mainly
casual and incidental to the contract, you dont apply lex loci celebrationis but you apply
lex intentionis, the law impliedly intended by the parties, applying the most significant
relationship theory. So when for example A and B, when they are temporarily in stopover in
Hong Kong. Stopover, they met there, A and B, while the are staying few hours in the
airport, Hong Kong airport, waiting for their respective flights in different countries. They
executed the contract in Hong Kong, during their momentary stay in Hong Kong but the
contract involves a property to be executed in China, to be performed in China, and all
other components of the contract relate to China, for purposes of determining the forms
and solemnities of the contract, the Lex loci celebrationis principle does not apply because
the place of execution of the contract which is Hong Kong therefor is obviously casual and
incidental. In which case, you apply the most significant relationship theory, and therefore,
you apply the laws of China. Now, take note, that in the application of the rules in Conflict
of Laws, it is not uncommon that the law applicable is the foreign law, take note. It is not
uncommon that applying the Conflict of Laws rules in the Philippines, the applicable law
and which the court is bound to apply following Conflict of Laws rule, is a Foreign Law. For
example, if the decedent is an American National and the issue is about order of
succession, capacity of an heir to inherit, the amount of successional rights and under
Article 16, paragraph 2, these matters are determined by the law of, by the national law of
Persons Scutarius Legis
the decedent. So, if the question involves these matters, the court of the Philippines will
now have to apply the law of the country which the decedent is a national. This is a
situation where in the application of the Conflict of Laws rules; the law to be applied by the
court is a foreign law. However, there are instances where even if the law applicable based
on the various interplay of conflict of laws rules, there are instance that the forum court or
the Philippine court where the case is filed, may not apply that foreign law, may not apply
this foreign law. What are these instances? The exception to the application and
recognition of a foreign law is, when the foreign law runs counter to the sound and
established public policy of the forum. So if the foreign law applicable contravenes the
sound and established public policy of the Philippines, the forum, the court is justified and
is even duty-bound not to apply the foreign law but apply the Philippine Law. This is the
ruling in the case of American Bank vs. American Royalty Corporation. This case involves
an international bank but, uh, licensed to do business in the Philippines, American Bank,
MT ***. In the pursuit of his business, the bank extended loans to three borrowers or
foreign corporations based in the country upon them. For non-payment of the loan, where
the three borrowers failed to pay the loan, the bank and the borrowers entered into a
restructuring agreement. But in order to, in order but a *** for the restructuring agreement,
the bank required and the borrowers complied with the involvement of their subsidiary
corporation in the Philippines, the American Royalty Corporation. This is an affiliate of the
three borrowers. Now, this American Royalty Corporation, owned properties in the
Philippines, so under the restructuring agreement, American Royalty Corporation was
made to stand as a guarantor by executing real mortgage over its properties located in the
Philippines, to guarantee the payment of the loan of the three borrowers under the
restructuring agreement. American Royalty Corporation was not a borrower, but reacted as
a third-party mortgagor. For non-payment of the loans under the restructuring agreement,
the Bank of America instituted four civil actions abroad against the borrowers, for the
collection of the loan. Two complaints were filed in Hong Kong and two were filed in
England against the borrowers. During the pendency of these cases abroad, the same
bank instituted a foreclosure proceeding against the real estate mortgage executed by the
American Royalty Corporation, also for the enforcement of their claim. So, there are now
two remedies availed of by the bank, *** to collect the obligation and foreclosure of the
mortgage. So, the real mortgage was now foreclosed. Subsequently, American Royalty
Corporation filed an action for damages against the bank for illegally foreclosing the real
estate mortgage. The action of the American Royalty Corporation was premised on the
ground that under Philippine Law, the mortgagee- creditor, has the option to either collect
the obligation by filing a collection suit or by foreclosing the mortgage. These remedies are
the alternative, not cumulative. So if the creditor, mortgagee, chooses to avail of the option
of collection suit, the mortgagee, creditor, is deem to have waived the right to avail of
foreclosure. Because under the rules in the Philippines, the creditor only avail one of the
two options, not both. The availment of one is a waiver as regards to the other. So,
premise on this argument, American Royalty Corporation seek damages against Bank of
America. For its part, Bank of America argued that under the original, uh, the law of the
Philippines, the parties agreed that the law applicable to their contract in case of dispute is
the law in England. And under the laws in England, the creditor mortgagor may avail of the
two options, as cumulative remedies. In other words, unlike in the Philippines, in England,
the creditor mortgagee may enforce the obligation by filing a collection suit and at the
same time by foreclosing the mortgage. These remedies may be pursuit simultaneously.
That was the argument of the bank invoking the law in England, the English law. So, the
question now is which law should prevail? It appears that base on their agreement, the
parties agreed that English law is the law applicable and yet the Supreme Court said that
even if be appropriate to apply the English law on the matter, because it is agreed upon by
the parties, yet, the court cannot apply the English law because to do so, would
contravene the sound and public policy of the forum. What is the public policy of the forum
on the matter? The public policy of the forum on the matter is the rule prohibiting splitting a
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single cause of action. The rule that
The rule that a mortgage creditor may only avail of either collection or for closure but not
both. So this case illustrates the principle that if the foreign law even if appropriate based
on the application of conflict of laws rule, may not be given application if doing so will
contravene an established public policy abroad. The same principle was upheld in the
case of POEA vs. Cadalin. This involves labor complaints filed by several Filipino ugh
overseas contract workers who worked in the Middle east including the country of Bahrain
. When they were working abroad, their contracts were terminated and many benefits were
not ugh released so they were repatriated to the Philippines and after they filed they lost
no time in filing labor complaints against the employer and the recruiters. Of so many
issues there (cough) involved in the case we are interested in the issue of prescription
here because on of the arguments raised by the ugh contending parties there was the
action WON the action that the laborers filed before the POEA had already prescribed,
there were three ugh arguments raised were advanced for this purpose. According to one
group eh, the POEA according to the POEA the prescriptive period applicable in this case
is that provided for under Art. 1144 of the Civil Code, which provides for a 10 year
prescriptive period while the NLRC which reversed the decision of the POEA ruled that the
prescriptive period applicable is that provided for under Art. 291 of the Civil code which is 3
years and the office of the Solicitor general argued that the prescriptive period applicable
here is that provided for under the Ameri decree(?) in Bahrain where the contract was
executed and the parties were employed. So there were 10 years, 3 years, 1 year. How
did the Supring Court (Hahahaha) resolve this issue (Stomps foot on the ground) as to
WON Ameri Decree (?) which provides for one year period the Supring Court
(HAHAHAHA) said, even if it appears that the Ameri degree is the one applicable because
the contracts were executed there the parties worked there. In fact, the parties were
allowed to avail of the benefits under the Ameri Decree which turned out to be more, more
beneficial to the Filipinos, the Supreme Court (Tarong na ko ani from this point onward)
said, when under the ameri decree which covers the contracts in question provides 1 year
prescriptive period we cannot apply this rule on prescription of 1 year. Because this is, to
do so would contravene our policy on the protection to labor. The Supreme court reiterated
the rule that our courts, ahhh a foreign Law may not be given, may not be recognized and
given effect in the Philippines if it contravenes the will of some and established public
policy of the (????). In this case the Supreme court said proper applicable prescriptive
period is (stomps foot on the ground) 3 years.
(Cough) thats the exception, so... (foot stomp) one may be tempted to ask, what about
same sex marriage? is same sex marriage entered into by foreigners valid there in the
country where it was solemnized, they come here in the Philippines they get, they figure in
case in the Philippines and there is an issue as to their status WON they be considered as
legally married to each other WON they be considered as spouses, how do we determine
this issue? Applying article 15, it is not hard to argue that since they are foreigners they are
governed by their national law on the matter of status, capacity, condition, family rights
because that is what our law says! So it would appear that if they are considered legally
married to each other abroad under their own law, who are we to say they are not? When
our law itself provides, that this matter should be governed by their own law, so legally
there is legal basis to argue that same sex marriage should be considered and recognized
as valid, in so far as Philippines but because they are foreigners. If they are Filipinos, they
are governed by our national law, but then under the 3rd paragraph of article 17 it says
there that prohibitory laws and those concerning family rights and duties public customs,
public order, public policy shall not be rendered mandatory by the laws or judgments
promulgated, or by the conventions or terminations agreed upon in the following country
so just because a transaction, an act is valid abroad it does not necessarily follow that it is
also valid in the Philippines., if it is against our own public policy, morals. consistent with
the principle that a foreign law cannot be given recognition in the Philippines if it
Persons Scutarius Legis
contravenes the sound, an established public policy so there is also legal basis to argue
that even if sex marriage is valid abroad under the national law of the parties involved, by
virtue of article 17 paragraph 3 that same sex marriage may not be recognized in the
Philippines because it is against our public policy. (foot stomp)
(cough) okay that's it, so this issue remains to be resolved by the supreme court, I have
searched in vain for an answer there is as yet no ugh actual case decided by the Supreme
Court ugh specifically ugh involving this issue, what I'm saying is either way. The point of
Law one argument is as good as the other on the point unless this is resolved by the
Supreme court... your guess is as good as mine. (foot stomp) Because they both have
legal basis, supported by Jurisprudence. If divorce is recognized which is against our
policy in so far as foreigners are concerned there is no plausible reason why same sex
marriage should not be recognized in so far as foreigners are concerned. But if a foreign
law is not recognized in the Philippines because it is against public policy then there is no
reason why same sex marriage which is against public policy should not be considered
should be considered valid based on Jurisprudence that you have so, as practicing
lawyers... my advice is go for the argument which supports your case (class laughs)
depending on which side you are on your argument is as good as the other and let the
court decide the problem here is if you happen to be the Judge. So this remains to be a
fertile ahhh ground for debate. Okay, so that's all for conflict of laws. Do we still have time?
Let's go to abuse of rights. 18... let's go to 19. What is... we now take up human relations.
(foot stomp) there are previous principles involved relating to human relations one of which
ohh this aghhh principles common principles aghhh abuse of rights the principle of abuse
of rights and unjust enrichment. These are the most common principles in human relation.
Let's go to abuse of rights.
The fundamental tenets in human relation is *pressed out* in article 19 of the Civil code
which says that everyone in the exercise of his right and in the performance of his
obligation should act with justice, give everyone his due and observe honesty and good
faith. So, it is incumbent of everyone in our dealings with others in the exercise of rights.
We are mandated by law to act with justice. Give everyone his due, observe honesty and
good faith. So what happens if one in violation of this principle acts otherwise, what
happens? One who acts contrary to the tenets fresh out of article 19 is guilty of the so
called abuse of rights even if you have rights but you exercise that right contrary to good
faith, honesty, justice that makes one liable for damages under the principle of abuse of
rights. Take note that article 19 does not provide for a penalty it merely states a general
principle of law fundamental principle of human relation. So what if you are the party
aggrieved by the other who is guilty of abuse in the exercise of his rights or in the
performance of his obligations. You now go to court on what is now your legal basis to ask
for damages when article 19 does not provide for remedy. Your action, predicated on
abuse of rights and your claim for damages must be based on either Article 20 or article 21
because both expressly provide for remedies by way of damages but 20 and 21 are not
the same. What is 20 and 21? Let's go to 20. Article 20 says that any person who contrary
to law willfully or negligently causes damages to another shall dignify for the damage
caused. What are the important elements that you must remember article 21. For article 21
to apply, the act must be contrary to the law meaning it must be illegal and the act is
committed either through negligence or intentional act. Willfully or negligently. So if the one
is guilty of fault, negligence or if the one is guilty of an intentional act and that act is
contrary to law and it results in the damage suffered by another that one who is guilty of
that act is liable for damages, for the damage that he cost to another. That is now your
basis for the complaint for damages in a complain ughh predicated on abuse of rights.
What if the act is not contrary to law? But it cost damage to another not all acts are
contrary to law, but it may be contrary to moral, public customs or public policy your basis
for your claim for damages would not be article 20, but article 21. It says there that anyone
who willfully, take note willfully causes damage to another in a manner contrary to morals
public policy or good customs shall indignify for the damage caused. take note that unlike
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in article 21 that act.,...unlike article 20 the act covered under article 21 must be intentional
unlike in 20 wherein it can be intentional or negligent act and unlike article 20, the act
covered under article 21 is not illegal, not contrary to law. But what makes it a wrongful act
is the fact that it is contrary to Public policy good customs, morals. What is a typical act
covered in article 21? Typical example, covered under article 21 is breach of contract to
marry. There is no law that penalizes one who breaches promise to marriage so it cannot
be under article 20 because article 20 presupposes an illegal act, but somehow an action
for damages may be filed against the party responsible for the breach under article 21
because it could be that the breach of contract to marry is contrary to morals, public
customs, public policy. What is the rule on breach of promise to marry? As a general rule,
a breach of promise to marry is not actionable Why? Marriage is consensual, no one can
be forced into marriage so if the one changes his mind at any time as a general rule, NO
liability. That is not an absolute rule because Jurisprudence will tell us that there are
instances where a breach of promise to marriage may give rise to an action for damages,
so what is the rule on breach to promise to marry? The rule governing breach of promise
to marry depends on the 2 situations, number 1 where there is carnal knowledge, and 2nd
where there is no carnal knowledge. What's carnal knowledge? I do not know, until now I
do not understand why this is called carnal knowledge. Why not say it the way it is
understood (foot stomp) sexual intercourse! It's even, cool and better to hear. Carnal
knowledge is full of pretentions (MAO!) Okay, what's the rule? 1st, there is carnal
knowledge, there is sexual intercourse. the rule is If there is sexual intercourse, there are
the following remedies, the offended party, the aggrieved may ahhh compel the if this
sexual intercourse results in pregnancy and birth of a child, the aggrieved party, the girl,
may file an action in court to compel the other to acknowledge the child and support the
child. 2nd if there is criminal or moral seduction, meaning the promise to marry was the
ahhh sufficient cause for the degradation. Meaning the other was able to deflower the
other, one was able to deflower the other because of the promise of marriage. And were it
not the promise of marriage the girl would not have surrendered complete surrender there
is criminal when the girl is less than 18 years old, this is criminal seduction or moral when
the girl is beyond 19. Either way, if there is seduction, criminal or moral action for damages
is always allowed. But not when the sexual intercourse is born out of by mutual lust. It was
mutually, resorted to by the 2 consenting adults who did it to their sickening delight, (Class
laughs LOL) No action for damages because the promise of marriage was not the
sufficient cause for the front. 2nd rule, in a situation where there was no sexual, carnal
knowledge, sexual... the rule is the other... before... where there is ahhhh sexual
intercourse, 3rd actual damages may also be recovered as when wedding preparations
and expenses were already incurred but the other did not show up so the one who spent
the expenses, is entitled to recover actual damages against the other, from the other. ok.
What is the rule if there was no sexual intercourse... the rule is still, actual damages can
be recovered by the one who shouldered, when the expenses were incurred by the party
aggrieved of course it can be recovered by the party aggrieved where they spent for the
wedding expenses. 2nd action to recover moral damages may be allowed IFF the other
party had the intention to endure the act, in either words the one who breached the
promise was motivated by ill will intended to endure, to hurt, humiliate the other moral
damages can be recovered even if there was no sexual intercourse. So if there was no
moral seduction no intention to inflict injury but the refusal to comply with promise of
marriage was done in good faith.. No action for damages can be had. Okay... lets go to
22.
Another principle, related to human relation is so called the principle of unjust enrichment.
No one should unjustly enrich himself at the expense of another. Under this principle we
have these provisions article 22 of the civil code and article 2154 these pro visions these 2
provisions pertain to the principle of unjust enrichment but how do you distinguish one
from the other. under article 22 when someone uhmmm acquires something from another
and he has no without justifiable cause (cough) someone acquires or comes into
Persons Scutarius Legis
possession of something from another without justifiable cause the one who receives it is
obliged to return the same to the one who delivered it. So what is involved here is a
situation where one receives something from another without justifiable cause. This
happens, the one, the recipient under the principle of unjust enrichment is obliged to
deliver it, to return it to the one from whom it came. How do you distinguish this from article
2154 of the civil code which says that whenever something is received where there is
nothing, where there is no right to demand it but the thing was delivered though mistake
the obligation to return the property arises. So this also contemplates of a situation where
someone receives something from another even if he has no right to demand from it but
this was delivered to him by mistake . An obligation to return.. Arises. So in both 22 and
2154 there is always an obligation to return, but how do you distinguish one from the
other? Article 22 is referred to as action in rem verso while article 2154 is referred to as
solutio indebiti how does one distinguish from the other, this two can be distinguished by
the fact that in 22 the property was recieved without justification, without justifiable cause
but it was received without mistake, so it was delivered without mistake, it was intentionally
delivered but no justifiable cause for someone to receive it while in 2154 the property was
received by someone because it was delivered to him by mistake, for action in rem
pursuant to article 22 the situation here is like a someone who is in a department store say
for example you buy there you buy.... one dozen ahhh whisper with wings. You bought
there whisper with wings, you paid in cash and you took the receipt you put the receipt in
your shoulder bag and then you continue to roam around the dept. store after few hours
you decided to go out of the department store when you were intercepted by the guard,
you were bringing with you your 1 dozen whisper w/ wings. So doing his job, the guard
demanded for the receipt otherwise you will be mauled to death Gaisano. unfortunately for
you, you misplaced the receipt. You cannot find it in your bag, after deliberate search the
receipt is nowhere to be found, and so to avoid being mauled or to avoid embarrassment
you decided to voluntarily pay again, you pay again. So you went home, when you got
home it was then that you found the receipt somewhere beneath your bag under 22, the
dept store who received twice for the same item, is ahhh liable to return to you the 2nd
payment. Take note that you making the 2nd payment was intentional it was not delivered
through mistake because you decided to pay it to avoid embarrassment to avoid being
hammered by the security guard. While article 2154, is illustrated in a situation where
someday, one time when you were so depressed. Alone and lonely, you went to your ATM
to withdraw something to buy ahhh a load, for your cellphone when you discover that your
supposed deposit of 1000 turned out to be 1000000 because someone by mistake
deposited 1000000 in your account (I don't know with you guys, pero kung ako na na
account I'll keep the money. LOL)
Can you withdraw it? No! because 2154, mandates you to return whatever you receive by
mistake. (Random gibberish)
That's, I think 22? Let's go to 23! Time na, so let's go to 23 tomorrow! Ha? Thursday, we
have 2 hours?
One hour? .... kaya pa.. okay.
Where are we? So another principle is related to human relation commission is the
principle of unjust enrichment. Ah, in particular, I am referring to art.22 of the Civil Code in
relation to Art. 21. Art. 22 is action rem in verso while in Art. 2154 is the principle in debiti .
Art. 2154 says, that whenever something is received and there is no right to demand it and
the thing is delivered by mistake, the obligation to return it arises. Art 22 and 2154, both
involve the obligation to return whenever something is received. Under Art.22 when there
is no justifiable ground to receive it. Under Art 2154, when there is no right to demand it.
But art.22 and 2154 can be distinguished from one another, in that under 22, the delivery
of something from one to the other is deliberate, meaning as distinguished from Art.2154
the delivery is by mistake. So, if something is deliberately delivered to another but there is
no right to demand delivery on the part of the recipient , the obligation to return arises. So
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this is, did I give you the example already? See we already done with that. Let us proceed
to 23, another species of unjust enrichment. It says there that an act or omission was not
due to the act, fault or negligence of the defendant, the defendant may still be held liable
for the damages trough that act, if the defendant was benefited. So, even if one is not
responsible for anothers loss or damage. The obligation to indemnify still arises, if the
person was benefited out of the event. Ah, ah, the typical example of this in the book.
Without As knowledge, a flood drives his cattle to the cultivated highlands of B, As cattle
are saved, but Bs crops are destroyed. True, A was not at fault, but he was benefited. It is
but right and equitable that he should indemnify B by virtue of Art. 23 of the Civil Code. So
it is the fact that the one derived benefit, the obligation to indemnify arises. Do not, aw,
distinguish this from Art. 432 of the Civil Code, and Art.11 paragraph 4 of the Revised
Penal Code, and I am referring to the doctrine of state of necessity or the doctrine of
incomplete privilege. In article 432, it says there that whenever the owner of that property
cannot prevent the other from interference of his property, if the interference in intended to
avoid greater evil, and the evil feared is greater than the damage to the property owner.
Under this provision, under the state of necessity. The actor who caused the liability has
no liability, but the person who benefited out of that act shall indemnify the owner of the
property damaged. ...... Pause for Prayer.......
Ok.so, Art.432 of the Civil Code is equally the same as Art. 11 paragraph 4 of the Revised
Penal Code. Under Art.432, the actor who caused the damage is not liable because He
caused the damage in order to avoid a greater evil but the person who benefited out of
that act is liable to indemnify the damage caused , but the actor is not in any way liable,
criminally or civilly. The same holds true under Article 11 paragraph 4 of the Revised Penal
Code, the actor is not civilly or criminally liable. But under Art.101 of the revised Penal
Code provides, it is the person who benefited out of that event who is liable to indemnify
the damage caused. Take note of this provision. Now, ahem, remember however that, the
doctrine of state of necessity or incomplete privilege does not apply, if the owner of the
property is the one responsible for the damage or guilty of some fault or negligence. In
other words, doctrine of state of necessity applies when the owner of the damaged
property is free from any form of negligence. This principle was enunciated in the case of
People vs Ty. Remember the case I assigned, the patient confined in the Manila Doctors
Hospital who claimed to be mistreated or maltreated by the , ah, hospital personnel. The
patient was initially accommodated in the suite accommodation but the accommodation
has been downgraded. The daughter of the patient, Vicky Ty was compelled to issue a
postdated and unfunded cheque . The hospital has not allowed the release of his mother
because the cheque bounced and Vicky was prosecuted under BP 22. Vicky Ty,
interposed the state of necessity, according to her, she was compelled to issue the cheque
to avoid grater evil that the Hospital wuld not release her mother from confinement. The
Supreme Court rejected her argument, doctrine of necessity is only applicable when the
person involved is not guilty of any fault or negligence. In this case, Vicky Ty is the one
responsible for the alleged greater evil. The Supreme Court say, that because of Vickys
fault that brought about the unanticipated greater evil. The doctrine of state of necessity
did not prosper in that case. Take not of this case. Let me go back to Art.22, 23, and 2154,
I missed out something . take note in 22 the article was delivered intentionally and
deliberately without mistake. But art. 2154 was delivered by mistake. What happens when
the property found is a lost property. What is the rule? The rule under art.308 of the
Revised Penal Code, someone who finds a lost property is obliged to return it to the owner
if known, deliver the found property to the Mayor of the place where the property was
found. Otherwise, the finder is liable for the crime of theft. It is theft, the act of not
delivering or returning the lost property to the authorities. Supposing the finder complies
the rule, under Article 719 of the Civil Code, the Mayor is obliged to make a public
announcement of the finding of the lost property. So it must be publicly announced. If the
owner comes forward, and claims the lost property within 6 months from the public
Persons Scutarius Legis
announcement, the property shall be delivered to the owner, but the finder gets 1/10 of the
value of the property found as a reward. So, ah, ah, honesty pays. So the finder is
compensated or rewarded by his honesty. However if the owner did not claim within the
period of six months from the time it was publicly announced. The entire property shall be
delivered to the finder, who now becomes the owner of the property by virtue of
occupation. That is the rule when the property found is a lost
property..................................silence.......................................
Jaysen: Sir, what is negotiorum Gestio? Sir: Negotiorum Gestio is a quasi-contract, let us
say that when there is a property and you took over that property, or you administer
without the knowledge or consent of the owner. By virtue of your administration of the
property, the owner is obliged to pay you the expenses that you may have incurred. So,
ah, ah Negotiorum Gestio is about the administration of a property and it is a quasi-
contract. Ahm, but, 22 or 23. Art.23 is about the destruction of the property, destroying a
property in order to avoid greater evil. Typical example is a fire, occurring in our high-end
subdivision in Maria Luisa for example. The only way to access the subdivision is through
the surrounding area occupied by squatters with their shanties and makeshift houses. And
that is the only way to get through the subdivision and put of the fire. So if the firemen
destroys their houses to put off the fire, they are not criminally or civilly liable. But of the
course the owner of the houses destroyed may recover damages from the owners of the
subdivision who benefited when the fire was eventually put off. That is the essence of
Art.23. The obligation to indemnify arises out from the benefit incurred when the firemen
destroyed the houses of the squatters to put off the fire. The same as Article 11, no civil
liability and criminal liability on the part of the actors who destroyed the surrounding
squatters houses. But civil liability lies on the persons benefited from the act.
The obligation to compensate for the damage caused arises from the fact that the
benefited out of the act of the fireman in destroying the squatters areas neighbouring
houses. That is the essence of indemnity, the same as article 11, no civil or criminal liability
in so far as the actor, the one who caused the damage. But the liability for indemnity lies
on the parties who have benefited out of the issue. But do not confuse this with article 436
of the civil code. If one property is destroyed by competent authority by reason of (?)
safety of security, no right to recover compensation arises. So if you happen to be an
owner of a ruinous building in the verge of collapse because of poor maintenance, the city
government destroyed your ruinous building to avoid eventual collapse and to avoid
danger to life and safety of the nearby residents. The owner of the building, unlike 432,
has no right to demand for compensation for the value of the building because this is the
exercise of the police power where no right of compensation is available. So you, you
differentiate the thin line that separate these provisions, 432, 436, 22, 21, 24.
The questions could be a little tricky in the exam. Questions? Before I to proceed to civil
actions, okay. Did I discuss the problem of renvoi? I missed that out sorry. Its part of the
conflict of laws rule. Lets go back to the problem of doreva. When the court resolves a
conflict of laws situation involving cases, with cases in involving public element and the
court applies the various conflict of laws principles, that we our, in our existing laws. If we
have (?) the question confounding the court is refereed in our law to the law of another
country, and if we consult the law of that other country, that law of that country in turn
refers the issue back to our own laws. And if we look at our own laws, our own law, our
own laws refer the same question back to the laws of the foreign country, so there will be a
interminable referring back forth of this. If this is allowed to continue, the problem will not
be solved; there will be no end to litigation. So this problem has to end. This is called the
problem of the renvoi which literally means, referring back. If this does not stop, it will pose
a situation of international football.
When does the problem of renvoi arise? As I emphasized earlier in my discussion, every
country has each body of laws, and in this body of laws are two components purely
internal laws and the conflict of laws rules. The problem of renvoi arises when the law,
EH409
when the law, when there is a doubt as to whether the law referred to in our conflict of laws
rule as the law referring to the law of the foreign country, is the law of the foreign country
purely internal? Or the entire body of laws of the foreign country including the conflict of
laws rule. Take for example article sixteen of the own civil code paragraph 2 which says
that interstate and testate succession (sic) is governed by the laws of the national law of
the person whose succession is under consideration, so based on our conflict of laws, in
so far as succession, national law is the controlling law. That is the, that is our own law by
virtue of our own law art. 16. Suppose in the problem the, the testator is a foreigner like a
German. So when we apply article 16 paragraph 2, the court is applied as to whether the
issue to the German law. But our art 16, simply states, national law of the decedent, it
does not specify whether that national law refers to the internal national law or the entire
body of laws of what country including of conflict of law rule, it is not specified that is why
there is a doubt because if the law being referred to in art 16 is the internal law of the
foreign country then our court will not try the internal law of that country. But if the law
being referred to by art 16 was referring to law of the foreign country, is the entire body of
law of that country including the conflict of laws rule. Chances are, the issue is referred
back to us, because their own conflict of law says that the question must be referred to
laws of the forum.
This is perfectly illustrated in the case of Edward Christensen. Edward Christensen was an
American citizen but domicile in the Phil at the time of his death. During his lifetime, he
executed a will wherein he disposed the bulk; he bequeathed the bulk of his property to his
legitimate his daughter Lucy, although he did not acknowledge that Helen is his illegitimate
daughter, Mr. Christensen, a portion a, little of his estate to Helen, so Helen was given a
little share of the pie. The bulk of the pie was bequeathed to Lucy. Helen a Filipino,
invoked the internal law in the Phil of succession, she says that either that the law of the
Phil of succession illegitimate daughter cause she claims to be the illegitimate daughter of
Edward, the illegitimate daughter is entitled to one half of what the legitimate daughter
gets, and by simple mathematical computation, the amount given to her in the will of Mr
Christensen was way below the amount that Helen claims to be her just share. So the
problem went to court, the issue now is on the validity of the provision in the will of Mr
Christensen in so far as the amount given to her, so she is saying that the issue is or
elates to the matter of the amount of successional rights which refers to the validity of the
testamental provisions of the will. So the intrinsic aspect of the will, which is governed by
the 2nd paragraph of art 16. So the court now, refers the issue to art 16. Art 16 says
national law of the decedent. And because Mr Christensen was an American, the court
refers the issue to the law of the US. But there are 2 laws in the US, the components of
general law; one is the US internal law on succession as well as the US conflict of laws
rule on succession. The internal law on succession, any person has the right to dispose of
his estate in any manner he desires. One is absolutely free to dispose his of estate; he is
free to dispose it, to bequeath it to anyone he wishes. But not in the Phil, because in the
Phil, our internal law of succession, does not grant the estator the absolute right of to
dispose of his estate because we observe or adhere to the principle of (legiting?). In that
there is a portion of ones estate that cannot be disposed of, but reserved to his
compulsory heir. This is one, this is the law that Helen has now invoked. But according to
Lucy, the law in the US says that Mr Christensen is free to dispose of his estate in any
manner he wishes. But what about the conflict of laws in the us on succession, the conflict
of rules on succession is that, when it comes to the succession of a citizen, the law of the
place where the testator was domicile at the time of his death must apply, which is
contrasting to ours, because ours is the law, the national law of the decedent, theirs the
domicile law theory is the conflict of laws rule on succession. Now there is a gap, because
our art 16 says national law of the decedent but does not specify if it refers to the internal
law, or the conflict of laws rule. What happens here? The SC said, when our court is
confronted with the problem of renvoi, in order to solve the problem, the Supreme Court
Persons Scutarius Legis
said, our court should, but before that, there are two solutions to solve that the problem of
renvoi. First solution is, to consider the law as internal; our first should reject the referring
back and acquire the internal law of the foreign country. The 2nd solution is, accept the
referring back of the issue and apply the internal law of the forum. In this case of
Christensen, our court shall accept the referring back of the issue and therefore our court
should apply our own internal law of succession, in this case Helen was given just heir in
the estate of her father in accordance to Phil internal law, that is one half of the share of
legitimate child. That is the case that perfectly illustrates the problem of renvoi, you take
note of that.
Lets got to civil action an act or omission may either constitute a crime or constitute a
tort, or constitute both a crime a tort at the same time. What is crime, what is tort? When is
there crime? There is a crime when the act or omission is punished by law, in other word if
there is a law that punishes an act or omission, there is a crime. Even if the act is immoral
or offensive to the sensibilities of man, there is no law that punishes it as a crime, there is
no crime. On the other hand, tort is also a wrongful act committed by one in violation of the
right of another which causes damage to the latter. So it is an act in violation of the right of
another causing damage or injury to the latter. A tort in our jurisdiction, is either committed
through fault or negligence or intentional act. Fault or negligence under art 2176 or quasi
delict, intentional tort is done one in ways under art 20. (It all?) Depends on, contrary to
law, wilfully or negligently cause a damage to another shall indemnify for the damages
incurred. That is the intentional tort. So, it is not unlikely that an act or omission may
constitute only a crime, it may also constitute not a crime but only a tort, but even both
crime and tort. A crime the offended party is the entire people, the society of as a whole
that is why in a criminal case, it is always people of the phil. It signifies that when a crime
committed, the offense constitutes an offense against the entire people because a crime
breaches the public peace, when a crime is committed, it is being punished not because of
the damage that is caused to the victim, but more because of the breach that the crime
caused to the public peace. The public deserves the tranquility and peace and that is the
one being breached when a crime is committed. So a crime if there is criminal liability, are
imposes penalty either with a form of fine where the accused is ordered to pay a certain
amount or imprisonment. On the other hand, tort is an act that cause damage to a private
individual, not the entire people. So more concerned (sic) rights of an individual being
violated, if entails civil liability, and the way of compensation the party responsible is a
judge civilly liable, the purpose of the civil action based on tort and (sic) is not to penalize
the party responsible but to compensate the victim for the damage that the victim suffers.
Its possible that an act or omission is only crime when there is no private interest in (sic)
but theres a specific tort that makes it a crime. So maybe a crime that punishes legal
possession of firearm, mere possession of a firearm there is no private right involved
there or an act or omission may cause damage to another but there is no law that makes it
a crime that is only proper. There is no criminal consideration that there may be civil action
based on tort or if possible that the (sic) permission constitutes crime at the same time
constitutes tort. Note there for example, when the crime of murder is committed, there is
breach of the public peace and therefore criminal case of murder may be instituted against
the offender and because there is a private interest involved where the victim, of course
who suffers damage as the result of the act or omission, tort, civil liability may be
recovered from the same offender. So it is not uncommon that the same act or omission
may give rise to the institution of two actions: one criminal, one civil. One to impose
criminal liability, one to recover civil liability. For our purposes now, we shall discuss how is
civil action constituted when there is when the same act also constitutes crime. How are
we supposed to (sic) civil action? There are two general kinds of a civil action the one
dependent, one dependent on the outcome of the criminal case and the other is the so
called independent civil action and a civil action does not depend on the outcome of
criminal action. For this purpose, we have to distinguish or enumerate or determine the
EH409
various sources of civil liability. We have civil liability arising from crime where the source,
the base there is, the basis there is Article 100 of the Revised Penal Code, it says every
person criminally liable is civilly liable. This is the kind of civil action which is dependent on
the criminal action because this civil liability proceeds from criminal liability. Every person
criminally liable is civilly liable, so it presupposes criminal liability. Thats why the civil
action there depends on the outcome of the criminal action. On the other hand, civil
actions based on Article 32 when a person, a private officer or public employees or officer
or private individual violates any of the constitutional rights of another, those enumerated
under the bill of rights, civil action may be instituted against the wrongdoer this is the
kind of independent civil action, does not depend on the outcome of whatever criminal
action that may be instituted arising on the same act or omission. (ART) 33 for crimes
involving defamation, fraud, physical injuries. The civil action may be filed arising from the
same act by the act or omission independent from the criminal action for libeldefamation;
fraudestafa; physical injurieshomicide, murder, parricide, infanticide. So these are
attempted (sic) where public or when a police or a member of a police force fails or refuses
to render or aid of protection to somebody who is in danger of his life or from, that is
another source of an independent civil action apart from the criminal action that may be
filed arising from the same act or omission, and lastly 2176 of the Civil Code the so called
quasi delict. So 32, 33, 34, 2176 are the various sources of civil liability which may be
pursued under the principle of independent civil actions. Whats the rule now? The
dependent and independent are governed by different procedural rules. Lets go to
dependent civil action. The dependent civil action, as I say, is the one that depends on the
outcome of the criminal case. Lets take the case of robbery, for example. By the way, what
comprises civil liability? When we talk about civil liability, what really does it contemplate?
Civil liability under104 of the Revised Penal Code, article 104 of the Civil Code consist of
number 1, restitution, so in the crime of robbery, civil liability may take the form of
restitution the accused or the convict may be directed by the court to return the stolen item
- thats restitution, or if the restitution is not available, civil liability may take the form of
reparation where the offended pa-, where the accused or the convict is ordered to pay the
value of stolen property and indemnification for consequential damages. So all other
damages that the victim sustained as a consequence of the crime like in murder, for
example, apart from the hospital expenses incurred in the (sic) hospitalization of the victim,
indemnification, indemnification for consequential damages may take the form of the
unearned income that the victim expected to earn during his lifetime and it had been for
the untimely death of the victim. So these are the, these comprise the civil liability that may
be covered in civil action unlike in criminal where the criminal only serves like your fine or
imprisonment. So whats the rule in dependent civil action? Number 1, the rule on
dependent civil action contemplates of four distinct situations. Lets go to the first situation.
When I say dependent civil action, Im referring to Article 100 of the Revised Penal Code it
says person criminally liable is civilly liable. Im not talking of any other sources. Lets go to
the first situation, the first situation is where the civil action is not waived, not reserved and
not file, not filed ahead of the criminal action. What is the rule? It is not waived, it is not
reserved neither it is not filed ahead of the criminal action, so whats the rule? Number 1
ruling, when the civil action based on 100, Article 100 in the RPC is not waived, no
reserve, no file ahead, it is deemed impliedly instituted the moment the criminal action is
filed in court. So in the crime of robbery, the moment that criminal information for robbery
is filed in court, and the party offended party does not waive the filing of civil action, does
not reserve the filing of civil action or does not file it ahead of criminal action then
automatically the civil action is deemed in (sic) instituted with the criminal case. So in that
same case criminal case, two purposes are pursued the state seeks imposition of criminal
liability and that private offended party seeks recover of civil liability. In other words, in that
same case for robbery, there are two lawyers there appearing, generally, the party
prosecutor representing the State, the People of the Philippines, and the private lawyer
representing the private offended party. But the private offended party does not wish to
Persons Scutarius Legis EH409
engage the services of private lawyer, the private offended party may just engage the
prosecutor. So, the private offended party will just have to make arrangement to the public
prosecutor that, fiscal I dont wish to engage the services of private lawyers so can you
please prove all (sic) civil liability in the presentation of your evidence? Because normally
if you have your own lawyer, the prosecutor will only be concerned themselves with
proving the elements of the crime, the fiscal would not be concerned so much with proving
the damage caused because he is only representing the interest of the State and the State
does not concert with the damage, a (sic) damage but then the (sic) allow that the
prosecutor also act as the, in a way act as the lawyer both for the State and the private
offended party. So the both the criminal action, the civil action are jointly trialed at the
same place. Theres only one criminal case. Take note, theres only one case but the
criminal aspect and civil aspect are jointly trialed. Therell only be one decision, okay?
There will be only one decision rendered by the court. The decision of the court may take
this form: what happens if the court finds the accused not guilty because of reasonable
doubt there is no sufficient evidence to prove the guilt of the accused beyond reasonable
doubt so the court declares the accused not guilty. Can the court in the same decision hold
the accused liable for civil liability, damages when on one hand the court (sic) the accused
can it, on the other hand, hold the accused liable civilly? And the article 29 of the Civil
Code, when the acquittal of the accused is based on reasonable doubt there is no
sufficient evidence constituting proof beyond reasonable doubt, it is still possible that the
accused may be held civilly liable although criminally examinated(?). Why? The reason
there is, because in the civil case the only quantum of evidence required is preponderance
of evidence which is an evidence lower and degrade than proof beyond reasonable doubt.
So its possible that the evidence presented is not enough to constitute proof beyond
reasonable doubt but good enough to constitute proof, ah, preponderance of evidence. On
the other hand, if the judgment of acquittal is based on complete innocence because the
court finds that the acts or omissions from which criminal liability might have arise did not
exist, can the court still hold the accused civilly liable? In this case, no more and this is
consistent with the dependent nature of the civil action. You cannot anymore invoke article
100 because article 100 presupposes conviction.