CASE NUMBER 1
Under the rules of both jurisdictions, admission in any particular case is
In re ​Application of MAX SHOOP for admission to practice law. (Janine)
Introduction to Civil Law | Malcolm, J. | November 29, 1920
Doctrine: ​The Philippines, in deciding cases, adopts the common law principles
subject to the limitation where the old civil law theories of Spain as applied to the
country are well-defined and when the theories and precedents of the
Anglo-American cases are inconsistent with the local customs and institutions.
Summary: ​Max Shoop is applying for admission to practice law in the Philippines
under Par. 4 of the Rules for the Examination of Candidates for Admission to the
Practice of Law. His application shows that he was practicing for more than 5 years
in the highest court of the State of New York. , there is a basis on comity to satisfy
the first requirement since the full phraseology indicates intent to include ALL of the
territory of the US.
The Philippines, after the change of sovereignty from Spain to the U.S., has adopted
the principles of the English Common Law through the present-day form of the
Anglo-American common law.
Facts:
● ​ ax Shoop is applying for admission to practice law in the Philippines
M the United States, they clearly are territory of the United States and to
under Par. 4 of the Rules for the Examination of Candidates for
Admission to the Practice of Law. His application shows that he was
practicing for more than 5 years in the highest court of the State of New
York.
● ​The rule requires that: New York State by comity confers the privilege
of admission without examination under similar circumstances to
attorneys admitted to practice in the Philippine Islands. Aside from
comity, the satisfactory affidavits of applicants must show they have
practiced at least 5 years in any district or circuit or highest court of the
US or territory of it. But admission is still in the discretion of the court.
● ​The rule of New York court permits admission without examination in
the discretion of the Appellate, such as:
1. Any person admitted to practice and who has practiced five
years as a member of the bar in the highest law court in any other
state or territory of the American Union or in the District of
Columbia.
2. Any person admitted to practice and who has practiced five
years in another country whose jurisprudence is based on the
principles of the English Common Law.
● New York ruling was not brought to the attention of SC authoritatively.
in the discretion of the court. Refusal to admit in any particular case is
not necessarily conclusive as to the general principles established by
the rules.
Issue: Whether the jurisprudence of the Philippines is based on the principles of
the English Common Law as required by the paragraph 2 of the N.Y. rule for
admission to the bar in the said state - YES
Held:
On Territory:
● The Philippine Islands is not an 'organized territory" incorporated into
the US under the constitution. The Philippine Islands is not a "foreign
country." In the language of that case it is a "territory of the United
States over which civil government could be established." Porto Rico is
also not a foreign territory and that the United States laws covering
"territories," such as the Federal Employers' Liability Act, includes
Porto Rico. Porto Rico, Hawaii, and Alaska are now incorporated,
organized territories of the United States.
● "While, like Porto Rico, the Philippine Islands are not incorporated in
the extent that Congress has assumed to legislate for them, they have
been granted a form of territorial government, and to this extent are a
territory."
● Philippine Islands have been held not to be "another country" within
the meaning of the Cuban Commercial Treaty.
● Therefore, there is a basis on comity to satisfy the first requirement
since the full phraseology indicates intent to include ALL of the
territory of the US.
On Common Law:
● Yes. The Philippines, after the change of sovereignty from Spain to the
U.S., has adopted the principles of the English Common Law through
the present-day form of the Anglo-American common law.
● The Philippines, in deciding cases, adopts the common law principles
subject to the limitation where the old civil law theories of Spain as
applied to the country are well-defined and when the theories and
precedents of the Anglo-American cases are inconstent with the local
customs and institutions.
● This principle is named the Philippine common law.
Disposition: ​Petition granted.
Case 2
ABUEVA (et al.) vs WOOD | January 14, 1924, ​Separation of Powers
BACKGROUND FACTS ​(of the parties):
Abueva et al. (petitioners) are members of the Independence Commission. The
creation of the commission was ratified and adopted by the Philippine Legislature on
March 8, 1919. 26 of them are members of the HoR and 4 are Senators of the
Philippine Islands. They all belong to the democratic party.
Respondents are Leonard Wood, the Governor-General of the Philippine
Islands, Manuel L. Quezon and Manuel Roxas, Presidents of the Independence
Commission. Also sued are the Acting Auditor , the Executive Secretary and the
Secretary of the Independence Commission.
FACTS:
By Act No. 2933 the Legislature of the Philippine Islands provided for a
standing appropriation of one million pesos(P1,000,000) per annum, to defray the
expenses of the Independence Commission, including publicity and all other
expenses in connection with the performance of its duties; that said appropriation
shall be considered as included in the annual appropriation for the Senate and the
House of Representatives, at the rate of P500,000 for each house;
Abueva et al. (petitioners) averred that as members of the Independence
Commission they are legally obliged to prevent the funds from being squandered and
to prevent any illicit expenses in open contravention of the purposes of the law.
Petitioners have verbally and by writing requested the respondents to permit them to
examine the vouchers and other documentary proofs relating to the expenditures and
payments made out of the funds appropriated for the use of the Independence
Commission.
The respondents have denied and continue denying to permit the petitioners
from examining said vouchers and documentary proofs.
This is an original action commenced in the Supreme Court by the petitioners
for the writ of mandamus to compel the respondents to exhibit to the petitioners and
to permit them to examine all the vouchers and other documentary proofs in their
possession, showing the disbursements and expenditures made out of the funds of the
Independence Commission. The petitioners, as members of the Legislature and
taxpayers. (Transcendental importance ​daw)​
DEFENSE OF THE ATTORNEY GENERAL (FOR THE RESPONDENTS)
He objects the jurisdiction of the Court over the respondents (Executive
department) as requested by the petitioners (Legislative department), upon the
ground that:
1. Leonard Wood, as Governor-General of the Philippine Islands and head of the
executive department of the Philippine Government, is not subject to the control or
supervision of the courts, and second, that Manuel L. Quezon and Manuel Roxas, as
Chairman of the Independence Commission, are mere agents of the Philippine
Legislature and cannot be controlled or interfered with by the courts.
2. The complaint does not state a cause of action in that there is no provision of law
making it the duty of the Auditor to exhibit the vouchers of expenses of the
Independence Commission to anybody that may ask for the privilege, and it is a
well-established rule that ​mandamus will not issue if there is no legal duty to be
enforced;
3. That there is no provision of law making it the duty of the Philippine Legislature,
of the Commission of Independence, and much less of both or either of these
respondents, to exhibit the records of the Commission to any person.
4. That the duties sought to be enforced by the petitioners, granting that they exist,
are, by nature, discretionary and political
ISSUE​​: W/N the Court has jurisdiction compel the respondents, through the
issuance of the writ of ​mandamus,​ to address the claims of the petitioners. ​(​NO​)
HELD:
The Government of the United State in the Philippine Islands is divided under
its charter or constitution (the Organic Act) into three great, separate, distinct, and
independent departments; the executive, the legislative, and the judicial. The duties
of each department are well defined and limited to certain fields of governmental
operation. This government is modeled after the Federal or state governments of the
United States, and possesses a complete governmental organization with executive,
legislative, and judicial departments which are exercising functions, as independent
of each other, as the Federal or state governments.
[WHY THE PETITION IS NOT GRANTED]
1. Section 222 of Act No. 190 provides generally when courts may issue the writ of
mandamus​. Said section provides that "when the complaint in an action in a court of
first instance alleges that any inferior tribunal, corporation, board, or person
unlawfully neglects the performance of an ​act which the law specially enjoins as a
duty ​resulting from an office, trust, or station, or unlawfully excludes the plaintiff
from the use and enjoyment of a right or office to which he is entitled.
It will be noted from said section 222 (and 515) that in order for the courts to
issue the extraordinary remedy of ​mandamus​, it must be shown that the persons
mentioned therein have unlawfully neglected "the performance of an act which the
law specially enjoins as a duty resulting from an office, trust, or station.” There is no
such failure of performing an act to which the law enjoins as a duty resulting to the
Office of the Petitioners. Thus, the writ of ​mandamus​ is inapplicable.
2. There is no allegation in the petition in the present case that Leonard Wood, as
Governor-General, has unlawfully neglected the performance of an act which the law
specially enjoins as a duty upon him resulting from his office, trust, or station. The
only allegation in the complaint relating to the duty or the neglected duty on the part
of Leonard Wood as Governor-General is, "that the original of said vouchers are in
possession
The failure of sufficient allegations in the complaint might therefore be
sufficient reason for denying the right prayed for. And even though the allegations of
the petition were sufficient, is without authority or jurisdiction to grant the remedy.
***DONE NA DITO Yung nasa baba, in case tanungin lang, kasi yun yung under sa
syllabus***
[RE: Separation of Powers, Kahit read lang to. Basic Polsci lang. Baka lang kasi
tanungin]
3. The question whether or not the courts have jurisdiction to control the official acts
of the executive and legislative departments of the Government has come before the
courts a great many times. The courts in the United States have not always been
uniform in their conclusion.
Among the numerous cases brought before the courts involving this issue, the case
found best-reasoned is that of ​Sutherland vs. Governor​:
“There is no very clear and palpable line of distinction between those
duties of the governor which are political, and those which are to be considered
miniterial merely; and if we should undertake to draw one, and to declare that in
all cases falling on one side the line the governor was subject to judicial process,
we will open the doors to an endless train of litigation, and the cases would
be numerous in which neither the governor nor the parties would be able to
determine whether his conclusion was, under the law, to be final.
Under the form of government established by the United States in the
Philippine Islands, one department of the government has no power or authority to
inquire into the acts of another, which acts are performed within the discretion of the
other department.
By the organic law of the Philippine Islands the Governor-General is invested
with certain important political powers, in the exercise of which he is to use his own
discretion and is accountable only to his country in his political character and to his
own conscience. The judicial and executive departments of the government are
distinct and independent, and neither is responsible to the other for the performance
of its duties and neither can enforce the performance of the duties of the other.
4. No one department can claim that it has a monopoly of these benign purposes of
the government.​ Each department has an exclusive field within which it can perform
its part within certain discretionary limits. No other department can claim a right to
enter these discretionary limits and assume to act there. No presumption of an abuse
of these discretionary powers by one department will be considered or entertained by
another. Such conduct on the part of one department, instead of tending to conserve
the government and the rights of the people, would directly tend to destroy the
confidence of the people in the government
The reason why the courts will not entertain jurisdiction to control or direct the
action of the executive or legislative departments of the government, is not that either
of said departments or the officers thereof are above the law, but because the people,
the organization of their government, deemed it wise to impose such duties upon
those departments. If the courts should take jurisdiction for the purpose of
controlling the acts of the executive and legislative departments of the government,
then the courts might become the ruling and directing power of the government and
deprive those departments of their legal functions, contrary to the very fundamental
idea of a republican form of government.
The court exercise no functions of sovereignty. The courts can only pronounce what
the law is, and what the rights of the parties are. When the courts pronounce an act of
the executive or legislative department of the government illegal and contrary to the
fundamental laws of the land, it is because the act of the executive department of the
government or the law adopted by the legislative department of the government, falls
within some of the inhibitions of the fundamental law of the state. ​The wisdom or
advisability of a particular statute, is not a question for the courts to determine
(THE PETITION IN THIS CASE IS MERELY A POLITICAL QUESTION)
RULING:
The Court has no jurisdiction over the case. The petition is denied.
Case 3
Cruz vs Pahati (PAO)
April 13, 1956 | Bautista Angelo | The Hybrid System
PETITIONER​​: Jose R. Cruz
RESPONDENTS​​: Reynaldo Pahati, et al.
Summary:
Northern Motors, inc. sold an automobile to a china man. The china man sold
the same to Belizo. Belizo is involved in a secondhand car business. Thus, he
sold it to Cruz. Belizo then offered Cruz that he would sell the car. Since the
car certificate was missing, Cruz issued an authorization letter for Belizo
without knowing that Belizo falsified the said document and made an absolute
sale when Belizo sold it to Bulahan. Bulahan sold the automobile to Pahati.
This prompted Cruz to file an action for replevin.
RTC: Bulahan is entitled to the automobile in question , ordered Cruz to return surrended the check for cancellation. He set up a counterclaim for
it.
SC: Cruz is entitled to the automobile in question.
Laws involved:
ART. 559. The possession of movable property acquired in good faith is-
equivalent to a title. Nevertheless, one who has lost any movable or has been between two innocent parties, he who gave occasion, through his
unlawfully deprived thereof, may recover it from the person in possession of conduct, to the falsification committed by Belizo, should be the
the same.
Art 1505. Where goods are sold by a person who is not the owner thereof, and
who does not sell them under authority or with the consent of the owner, the
buyer acquires no better title to the goods than the seller had, unless the owner
of the goods is by his conduct precluded from denying the seller's authority to
sell.
FACTS:
- Northern Motors, inc. sold an automobile to a china man. Said
china man then sold it to Belizo. Belizo is a dealer in a secondhand
cars. Belizo then sold the automobile to Cruz.
- Belizo made an offer to Cruz that he would sell the car.
However, the car registration was missing.
- Cruz then gave Belizo an authorization letter in order to allow
him to sell the automobile.
- Belizo then sold it to Bulahan.
- Pahati bought the automobile from Bulahan via check with the
amount of P4, 900.
- The Manila Police Department impounded said automobile,
Pahati cancelled the sale and stopped the payment of the check.
- ​As a result he returned the automobile to Bulahan who in turned
the sum of P2,000 as attorney's fees.
- ​Bulahan claimed he bought the automobile from Belizo, the
former didn’t have any knowledge of any defect in the title. Cruz
has acquired by purchase from Belizo. Cruz delivered the
automobile to Belizo for resale. In effect, he gave Belizo apparent
ownership or authority to sell.
​Cruz is estopped to deny this ownership. Bulahan claims that
one to suffer the loss and this one is the plaintiff. Bulahan also set
up a counterclaim for P17,000 as damages and attorney's fees.
- ​Cruz then filed an action for replevin.
ISSUES:
- ​WON ​Cruz is entitled to the automobile. YES
HELD: T​​he Court declares plaintiff to be entitled to recover the car in
question

Ratio:
- ​Art 559 applied to the facts show that it was Cruz who was
unlawfully deprived thus he may recover it from the person of
possession.
- ​Art 1505 also shows that when goods are sold by a person who is
not the owner, and also who does not have the authority or consent
of the actual owner, the buyer acquires no better title to the goods
than the seller.
- ​t is a fundamental principle of our law of personal property that
no man can be divested of it without his own consent;
consequently, even an honest purchaser, under a defective title,
cannot resist the claim of the true owner. The maxim that 'No man
can transfer a better title than he has himself "obtain in the civil as
well as in the common law."
CASE 4 elections, but not of politicians who helped in the passage of the RH Law
but were not candidates for that election.
Diocese of Bacolod v. COMELEC (2015) • February 22, 2013 - Respondent Atty. Mavil V. Majarucon, in her
capacity as Election Officer of Bacolod City, issued a Notice to Remove
Campaign Materials addressed to petitioner Most Rev. Bishop Vicente M.
FACTS: Navarra.
o The election officer ordered the tarpaulin’s removal within three
• February 21, 2013 - Petitioners posted two (2) tarpaulins within a (3) days from receipt for being oversized.
private compound housing the San Sebastian Cathedral of Bacolod. o COMELEC Resolution No. 9615 provides for the size requirement
• Each tarpaulin was approximately six feet (6’) by ten feet (10’) in of two feet (2’) by three feet (3’).
size. (They were posted on the front walls of the cathedral within public • February 25, 2013 - Petitioners replied requesting, among others,
view.) o The first tarpaulin contains the message “IBASURA RH Law” that o (1) petitioner Bishop be given a definite ruling by COMELEC
referring to the Reproductive Health Law of 2012 or Republic Act No. Law Department regarding the tarpaulin; and o (2) pending this
10354. opinion and the availment of legal remedies, the tarpaulin be allowed to
o The second tarpaulin is the subject of the present case. remain.
§ This tarpaulin contains the heading “Conscience Vote” and lists • February 27, 2013 - COMELEC Law Department issued a letter
candidates as either “(Anti-RH) Team Buhay” with a check mark, or ordering the immediate removal of the tarpaulin; otherwise, it will be
“(Pro-RH) Team Patay” with an “X” mark. constrained to file an election offense against petitioners.
§ The electoral candidates were classified according to their vote on o The letter of COMELEC Law Department was silent on the
the adoption of Republic Act No. 10354, otherwise known as the RH Law. remedies available to petitioners. The letter provides as follows:
§ Those who voted for the passing of the law were classified by
petitioners as comprising “Team Patay,” while those who voted against it Dear Bishop Navarra:
form “Team Buhay”:7 It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards
TEAM BUHAY TEAM PATAY the election propaganda material posted on the church vicinity promoting
Estrada, JV Angara, Juan Edgardo for or against the candidates and party list groups with the following names
Honasan, Gregorio Casiño, Teddy and messages, particularly described as follows:
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis The three (3)-day notice expired on February 25, 2013.
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren Considering that the above mentioned material is found to be in violation of
Party List Ang Pamilya Party List Gabriela Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly
Party List Akbayan on the size (even with the subsequent division of the said tarpaulin into
Party List Bayan Muna two), as the lawful size for election propaganda material is only two feet
Party List Anak Pawis (2’) by three feet (3’), please order/cause the immediate removal of said
election propaganda material, otherwise, we shall be constrained to file an
• During oral arguments, respondents conceded that the tarpaulin election offense case against you.
was neither sponsored nor paid for by any candidate. o Petitioners also
conceded that the tarpaulin contains names of candidates for the 2013 We pray that the Catholic Church will be the first institution to help the
Commission on Elections in ensuring the conduct of peaceful, orderly,
honest and credible elections. Thank you and God Bless! [signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV
• Concerned about the imminent threat of prosecution for their
exercise of free speech, petitioners initiated this case through this petition
for certiorari and prohibition with application for preliminary injunction and
temporary restraining order.
• They question respondents’ notice dated February 22, 2013 and
letter issued on February 27, 2013. o They pray that:
o (1) the petition be given due course;
o (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and
o (3) after notice and hearing, a decision be rendered declaring the
questioned orders of respondents as unconstitutional and void, and
permanently restraining respondents from enforcing them or any other
similar order.
• After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from enforcing the
assailed notice and letter, and set oral arguments on March 19, 2013.
• March 13, 2013 - Respondents filed their commentarguing that o
(1) a petition for certiorari and prohibition under Rule 65 of the Rules of
Court filed before this court is not the proper remedy to question the notice
and letter of respondents; and
o (2) the tarpaulin is an election propaganda subject to regulation by
COMELEC pursuant to its mandate under Article IX-C, Section 4 of the
Constitution.
o Hence, respondents claim that the issuances ordering its removal
for being oversized are valid and constitutional.
ISSUE/ HELD:
Does the COMELEC have any jurisdiction with its acts threatening
imminent criminal action effectively abridging meaningful political speech?
NO.
• It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall under
Article IX-C, Section 2(3) of the Constitution.
• The use of the word “affecting” in this provision cannot be
interpreted to mean that COMELEC has the exclusive power to decide any
and all questions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its
own jurisdiction.
• The more relevant provision for jurisdiction in this case is Article
VIII, Section 5(1) of the Constitution. o This provision provides for
this court’s original jurisdiction over petitions for certiorari and prohibition.
o This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.
• Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the constitutionality of the
notice and letter coming from COMELEC is within this court’s power to
review.
• During elections, we have the power and the duty to correct any
grave abuse of discretion or any act tainted with unconstitutionality on the
part of any government branch or instrumentality. This includes actions by
the COMELEC.
o Furthermore, it is this court’s constitutional mandate to protect the
people against government’s infringement of their fundamental rights.
o This constitutional mandate outweighs the jurisdiction vested with
the COMELEC.
• It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
Did the petitioners violate the principle of exhaustion of administrative
remedies as the case was not brought first before the COMELEC En Banc
or any if its divisions? NO.
• The Court held that the argument on exhaustion of administrative
remedies is not proper in this case.
• Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication.
o Ripeness is the “prerequisite that something had by then been
accomplished or performed by either branch or in this case, organ of
government before a court may come into the picture.”
• Petitioners’ exercise of their right to speech, given the message and
their medium, had understandable relevance especially during the elections.
o COMELEC’s letter threatening the filing of the election offense
against petitioners is already an actionable infringement of this right.
o The impending threat of criminal litigation is enough to curtail
petitioners’ speech.
• In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the violation
of their freedom of speech.
Does the COMELEC have the competence to limit expressions made by the
citizens — who are not candidates — during elections?NO, COMELEC had
no legal basis to regulate expressions made by private citizens
• Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the tarpaulin.
However, all of these provisions pertain to candidates and political parties.
o Petitioners are not candidates. Neither do they belong to any
political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a
noncandidate in this case.
Did the assailed notice and letter for the removal of the tarpaulin violated
petitioners’ fundamental right to freedom of expression? YES.
• The Court held that every citizen’s expression with political
consequences enjoys a high degree of protection.
• Moreover, the respondent’s argument that the tarpaulin is election
propaganda, being petitioners’ way of endorsing candidates who voted
against the RH Law and rejecting those who voted for it, holds no water.
• he Court held that while the tarpaulin may influence the success or
failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted “in return for consideration” by any candidate, political party, or
party-list group.
• By interpreting the law, it is clear that personal opinions are not
included, while sponsored messages are covered.
• The content of the tarpaulin is a political speech o Political
speech refers to speech “both intended and received as a contribution to
public deliberation about some issue,” “fostering informed and civic minded
deliberation.”
o On the other hand, commercial speech has been defined as speech
that does “no more than propose a commercial transaction.” o The
expression resulting from the content of the tarpaulin is, however, definitely
political speech.
Was the order for removal of the tarpaulin is a content-based or
content-neutral regulation? Content-based regulation
• Content-based restraint or censorship refers to restrictions “based
on the subject matter of the utterance or speech.” o In contrast,
content-neutral regulation includes controls merely on the incidents of the
speech such as time, place, or manner of the speech.
• The Court held that the regulation involved at bar is content-based.
The tarpaulin content is not easily divorced from the size of its medium.
• Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as measure.
o Under this rule, “the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of imminence
extremely high.’”
o “Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the government having
the burden of overcoming the presumed unconstitutionality.”
• Even with the clear and present danger test, respondents failed to
justify the regulation.
o There is no compelling and substantial state interest endangered
by the posting of the tarpaulin as to justify curtailment of the right
of freedom of expression.
o There is no reason for the state to minimize the right of
non-candidate petitioners to post the tarpaulin in their private
property.
o The size of the tarpaulin does not affect anyone else’s
constitutional rights.
Was there a violation of petitioners’ right to property. YES.
• The Court held that even though the tarpaulin is readily
seen by the public, the tarpaulin remains the private property of
petitioners.
• Their right to use their property is likewise protected by
the Constitution.
o ​Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal
protection of the laws.
Are the tarpaulin and its message considered religious speech? NO.
• The Court held that the church doctrines relied upon by
petitioners are not binding upon this court.
• The position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the posting by one
of its members of a tarpaulin as religious speech solely on such
 Law” referring to the Reproductive Health Law of 2012 or • February 22, 2013 - Respondent Atty. Mavil V. Majarucon, in her
Republic Act No. 10354​. capacity as Election Officer of Bacolod City, issued a Notice to
o The second tarpaulin is the subject of the present case. Remove Campaign Materials​8 ​addressed to petitioner Most Rev. Bishop
§ ​This tarpaulin contains the heading “Conscience Vote” Vicente M. Navarra.
and lists candidates as either “(Anti-RH) Team o The election officer ordered the tarpaulin’s removal within
Buhay” with a check mark, or “(Pro-RH) Team three (3) days from receipt for being oversized.
Patay” with an “X” mark. o COMELEC Resolution No. 9615 provides for the size
§ The electoral candidates were classified according to requirement of two feet (2’) by three feet (3’).
their vote on the adoption of Republic Act No. • February 25, 2013 - Petitioners replied​ ​requesting, among others, that
10354, otherwise known as the RH Law. O ​(1) petitioner Bishop be given a definite ruling by COMELEC
§ Those who voted for the passing of the law were Law Department regarding the tarpaulin; and
classified by petitioners as comprising “Team Patay,” o (2) pending this opinion and the availment of legal remedies,
while those who voted against it form “Team the tarpaulin be allowed to remain.
Buhay”:​7 • February 27, 2013 - COMELEC Law Department issued a letter
ordering the immediate removal of the tarpaulin; otherwise, it will be
TEAM BUHAY TEAM PATAY constrained to file an election offense against petitioners.
o The letter of COMELEC Law Department was silent on the
Estrada, JV Angara, Juan Edgardo remedies available to petitioners. The letter provides as
Honasan, Gregorio Casino, Teddy follows:
Magsaysay. Mitos Cayetano, Alan Peter
Dear Bishop Navarra:
Pimentel, Koko Enrile, Jackie
It has reached this Office that our Election Officer for this
Trillanes, Antonio Escudero, Francis City, Atty. Mavil Majarucon, had already given you notice on
Villar, Cynthia Hontiveros, Risa February 22, 2013 as regards the election propaganda material
Party List Buhay Legarda, Loren posted on the church vicinity promoting for or against the
candidates and party list groups with the following names and
Party List Ang Pamilya Part List Gabriela
messages, particularly described as follows:
Party List Akbayan
Party List Bayan Muna
Part List Anakpawis The three (3)-day notice expired on February 25, 2013.

Considering that the above mentioned material is found to be

• ​During oral arguments, respondents conceded that the tarpaulin was
neither sponsored nor paid for by any candidate. ​o Petitioners also
conceded that the tarpaulin contains names of candidates for the 2013
elections, but not of politicians who helped in the passage of the RH
Law but were not candidates for that election.
in violation of Comelec Resolution No. 9615 promulgated on
January 15, 2013 particularly on the size (even with the
subsequent division of the said tarpaulin into two), as the
lawful size for election propaganda material is only two feet
(2’) by three feet (3’), please order/cause the immediate
removal of said election propaganda material, otherwise, we
shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution
to help the Commission on Elections in ensuring the conduct of peaceful,
orderly, honest and credible elections. Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV
• Concerned about the imminent threat of prosecution for their exercise
of free speech, petitioners initiated this case through this petition for
certiorari and prohibition with application for preliminary injunction
and temporary restraining order.
• They question respondents’ notice dated February 22, 2013 and letter
issued on February 27, 2013.
​o They pray that:
o (1) the petition be given due course;
o (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from
further proceeding in enforcing their orders for the removal of
the Team Patay tarpaulin; and
o (3) after notice and hearing, a decision be rendered declaring
the questioned orders of respondents as unconstitutional and
void, and permanently restraining respondents from enforcing
them or any other similar order.
• After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from enforcing the
assailed notice and letter, and set oral arguments on March 19, 2013.
• March 13, 2013 - Respondents filed their comment arguing that
​o (1) a petition for ​certiorari and prohibition under Rule 65 of the
Rules of Court filed before this court is not the proper remedy
to question the notice and letter of respondents; and
o (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under
Article IX-C, Section 4 of the Constitution.
o Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.
ISSUE/ HELD:
Does the COMELEC have any jurisdiction with its acts threatening imminent
criminal action effectively abridging meaningful​ ​political speech? NO.
• It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall under
Article IX-C, Section 2(3) of the Constitution.
• The use of the word “affecting” in this provision cannot be interpreted
to mean that COMELEC has the exclusive power to decide any and all
questions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of
its own jurisdiction.
• The more relevant provision for jurisdiction in this case is Article
VIII, Section 5(1) of the Constitution.
​o This provision provides for this court’s original
jurisdiction over petitions for ​certiorari​ and prohibition.
o This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.
• Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the constitutionality of
the notice and letter coming from COMELEC is within this court’s
power to review.
• During elections, we have the power and the duty to correct any grave
abuse of discretion or any act tainted with unconstitutionality on the
part of any government branch or instrumentality. This includes
actions by the COMELEC.
o Furthermore, it is this court’s constitutional mandate to protect
the people against government’s infringement of their
fundamental rights.
o This constitutional mandate outweighs the jurisdiction vested
with the COMELEC.
• It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
Did the petitioners violate the principle of exhaustion of administrative remedies as
the case was not brought first before ​the COMELEC En Banc or any if its
divisions? NO.
• ​The Court held that the argument on exhaustion of administrative
remedies is not proper in this case.
 • Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication.
o Ripeness is the “prerequisite that something had by then been
accomplished or performed by either branch or in this case,
organ of government before a court may come into the
picture.”
• Petitioners’ exercise of their right to speech, given the message and
their medium, had understandable relevance especially during the
elections.
o COMELEC’s letter threatening the filing of the election
offense against petitioners is already an actionable
infringement of this right.
o The impending threat of criminal litigation is enough to curtail
petitioners’ speech.
• In the context of this case, exhaustion of their administrative remedies
as COMELEC suggested in their pleadings prolongs the violation of
their freedom of speech.
Does the COMELEC have the competence to limit expressions made by the
citizens — who are not candidates — during e​ lections?NO, COMELEC had no
legal basis to regulate expressions made by private citizens
• Respondents cite the Constitution, laws, and jurisprudence to support
their position that they had the power to regulate the tarpaulin.
However, all of these provisions pertain to candidates and political
parties.
o Petitioners are not candidates. Neither do they belong to any
political party. COMELEC does not have the authority to
regulate the enjoyment of the preferred right to freedom of
expression exercised by a noncandidate in this case.
Did the assailed notice and letter for the removal of the tarpaulin violated
petitioners’ fundamental right to freedom of​ e​ xpression? YES.
• The Court held that every citizen’s expression with political
consequences enjoys a high degree of protection.
• Moreover, the respondent’s argument that the tarpaulin is election
propaganda, being petitioners’ way of endorsing candidates who voted
against the RH Law and rejecting those who voted for it, holds no
water.
• he Court held that while the tarpaulin may influence the success or
failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid
for or posted “in return for consideration” by any candidate, political
party, or party-list group.
• By interpreting the law, it is clear that personal opinions are not
included, while sponsored messages are covered.
• ​The content of the tarpaulin is a political speech
o Political speech refers to speech “both intended and
received as a contribution to public deliberation about some
issue,” “fostering informed and civic minded deliberation.”
o On the other hand, commercial speech has been defined as
speech that does “no more than propose a commercial
transaction.” ​o The expression resulting from the content of
the tarpaulin is, however, definitely political speech.
Was the order for removal of the tarpaulin is a content-based or content-neutral
regulation? Content-based regulation
• Content-based restraint or censorship refers to restrictions “based on
the subject matter of the utterance or speech.”
o In contrast, content-neutral regulation includes controls merely
on the incidents of the speech such as time, place, or manner
of the speech.
• The Court held that the regulation involved at bar is content-based.
The tarpaulin content is not easily divorced from the size of its
medium.
• Content-based regulation bears a heavy presumption of invalidity, and
this court has used the clear and present danger rule as measure.
o Under this rule, “the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of
imminence extremely high.’”
o “Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed
unconstitutionality.”
 • Even with the clear and present danger test, respondents failed to
justify the regulation​​.
o There is no compelling and substantial ​state interest endangered
by the posting of the tarpaulin as to justify curtailment of the
right of freedom of expression.
o There is no reason for the state to minimize the right of
non-candidate petitioners to post the tarpaulin in their private
property.
o The size of the tarpaulin does not affect anyone else’s
constitutional rights.
Was there a violation of petitioners’ right to property. YES.
• ​The Court held that even though the tarpaulin is readily seen by the
public, the tarpaulin remains the private property of petitioners.
• Their right to use their property is likewise protected by the
Constitution.
o Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because
it is repugnant to the constitutional guaranties of due process
and equal protection of the laws.
Are the tarpaulin and its message considered religious speech? NO.
• ​The Court held that the church doctrines relied upon by petitioners are
not binding upon this court.
• The position of the Catholic religion in the Philippines as regards the
RH Law does not suffice to qualify the posting by one of its members
of a tarpaulin as religious speech solely on such basis.
• The enumeration of candidates on the face of the tarpaulin precludes
any doubt as to its nature as speech with political consequences and
not religious speech.
Article 1
Historical Evolution of Philippine Law – An overview
Various periods of political development the Philippines has experienced:
- ​The Pre-Spanish Era
Refers to the time before Ferdinand Magellan (1480-1521) which was the
discovery of the Philippines to the western world. Before the Christian era,
Indonesian and Malay migrants came to the Philippines to set up barangays.
Each of this Barangay was independent and self-sustaining political unit. The
barangays were headed by a datu. Barangay groupings were headed by a higher
chief named a Rajah and would consult lesser chiefs for laws. These laws were
handed down to the next generation by word of mouth. Only the Code of
Kalantiaw and the Maragtas Code are the only pre-Spanish written laws that
are now relics. Cases were settled through mediation and compromise. If the
parties could not agree, a public hearing was held. The dispute settlement was
coursed through a mechanism called Katarungang Pambarangay (RA 7160)
which compels residents of the barangay to enter first into conciliation before
the Lupong Tagapamayapa prior to filing of an action in court.
- ​The Spanish Regime
Spain ruled the Philippines through the Council of Indies in Spain. The King of
Spain exercised legislative powers over the colonies. Laws with general
application affect the PH (e.g. Fuero Jusgo). Spain also extended the application
of new codes and statutes such as the Civil Code (1889) and Penal Code (1888).
On 1583, the Royal Audienca. During the fight for PH independence against the
Spain, the Malolos Constitution established the short-lived PH republic.
- ​American Period
Started with the cession of the PH by the Spanish Crown to the United
States through the Treaty of Paris. The United States Constitution was
not extended to the PH. These acts that defined PH government were:
Instruction of Pres. McKinley to the PH Commission, The Philippine
Bill, The Philippine Autonomy Act, and the Philippine Independent
Act.
 · Military Government (Military governor exercised all the
powers)
· Civil Government (Transferring the executive power to the
Chairman of the Philippine Commission)
· Commonwealth Government (Tydings-McDuffie Law was a
ten-year transition period for independence)
- ​Japanese Occupation (Three-year military rule, a constitution was drafted in
1943 which led to a Japanese-sponsored republic)

- ​Philippine Republic (Inauguration as a Republic on July 4, 1946)

· Martial Law Period

1973 Constitution established the merging of executive and
legislative powers.
· Post EDSA
Junked the Marcos Constitution (I.e. The SC was reorganized, the
legislature was dismissed, local government officials were replaced,
and the government was reorganized).

Case Number 5 (Andrew)

Angara vs. Electoral Tribunal (1936)

SECTION 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may
be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list
system represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
FACTS:
• In the Sep. 1935 elections, Jose Angara, Pedro Ynsua, Miguel Castillo and
Dionisio Mayor were candidates voted for the position of member of the National
Assembly in the first district of Tayabas.
• Angara was proclaimed member-elect for the said district. He thereafter took his
oath in office.
• On Dec. 3, 1935, the National Assembly passed Resolution No. 8 saying that those
who as of Dec. 3 had not received an election protest, were approved and confirmed
as members. (Translated from Spanish, huhu).
• On Dec. 8, a Motion of Protest was filed by Ynsua against the election of the
Angara with the Electoral Commission (present day equivalent is the Electoral
Tribunal).
• Angara countered this with a Motion to Dismiss the Protest. He alleges that: o
Resolution No. 8 was adopted in the legitimate exercise of the power of the National
Assembly to prescribe the period during which protests against the election of its
members should be presented o The protest in question was filed out of the
prescribed period.
• The MTD was denied by the ElecCom.
• On Dec. 9, the ElecCom issued Resolution no. 9 fixing the said date as the last day
for the filing of protests against the election, returns and qualifications of members of
the National Assembly, notwithstanding the previous confirmation by the National
Assembly. o So, merong confirmation of Angara already by Dec. 3 since no election
protest was filed against him then, but the ElecCom said you can file until Dec. 9.
ISSUES/HELD
Did the Electoral Commission properly entertain the election protest, despite
the previous confirmation of Angara by the National Assembly? YES
• Electoral Commission Wins! The Dec. 3 resolution of the National Assembly of
confirming the election of the members of the National Assembly against whom no
protest had thus far been filed, could not and did not deprive the Electoral
Commission of its jurisdiction to take cognizance of election protests filed within the
time that might be set by its own rules.
• The issue hinges on the interpretation of section 4 of Article VI (present day Sec.
17) of the Constitution, “sole judge of all contests relating to the election, returns,
and qualifications”(ERQ).6
The Nature of the Electoral Commission
• The Electoral Commission is a constitutional organ, created for a specific purpose,
namely to determine all contests relating to the election, returns and qualifications of
the members of the National Assembly. o In the deliberations, it was made clear that
if the election and qualification of a member was uncontested, the ElecCom has no
jurisdiction as there is nothing to “judge”.
• The transfer of the power of determining the election, returns and qualifications of
the members of the legislature long lodged in the legislative body, to an independent,
impartial and non-partisan tribunal, is by no means a mere experiment in the science
of government.
o The purpose of the ConCom was to transfer the powers previously exercised by the
legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal.
o This was designed to remedy certain evils of which the framers of our Constitution
were cognizant. That is to avoid partisan considerations in determining legislative
contests.
o Thus, a composite body in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the
Supreme Court.
• The grant of power to the ElecCom to judge all contests regarding ERQ is intended
to be as complete and unimpaired as if it had remained originally in the legislature.
o The express lodging of that power in the ElecCom is an implied denial of the
exercise of that power by the National Assembly. o And this is as effective a
restriction upon the legislative power as an express prohibition in the Constitution.
o The power to regulate on the part of the National Assembly in procedural matters
will inevitably lead to the ultimate control by the Assembly of the entire proceedings
of the ElecCom, and, by indirection, to the entire abrogation of the constitutional
grant.
o It is obvious that this result should not be permitted.
• The creation of the ElecCom carried with it ex necesitate rei the power regulative in
character to limit the time with which protests entrusted to its cognizance should be
filed.
o Thus, the incidental power to promulgate such rules necessary for the proper
exercise of its exclusive power to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the ElecCom.
• Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3,
1935, cannot be construed as a limitation upon the time for the initiation of election
contests.
o Confirmation by the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal purposes, unnecessary.
o The confirmation of the election of any member is not required by the Constitution
before he can discharge his duties as such member.
o Certification by the proper provincial board of canvassers is sufficient to entitle a
member-elect to a seat in the national Assembly and to render him eligible to any
office in said body.

In short:
• Before, each House of the legislature was the sole judge of the ERQ of its
members.
o Sec. 4, Art. VI, repealed both Sec. 18 of the Jones Law and Sec. 478 of Act No.
3387, which gave each House of the legislature, the power to be the sole judge of the
ERQ of its members and prescribed the manner of filing of contests.
• The 1935 Constitution transferred this authority to the ElecCom. o The ElecCom is
an independent constitutional creation with specific powers and functions, and is the
sole judge of all contests relating to the election, returns and qualifications of
members
o That such transfer of power from the legislature to the ElecCom was: § Full, clear
and complete, and § Carried with it ex necesitate rei the implied power to prescribe
the rules and regulations as to the time and manner of filing protests.
• The avowed purpose in creating the ElecCom was to have an independent
constitutional organ pass upon all contests relating to the ERQ of the National
Assembly devoid of partisan influence or consideration.
o This object would be frustrated if the National Assembly were to retain the power
to prescribe rules and regulations regarding the manner of conducting said contests.
• Moreover, confirmation by the National Assembly of the election, contested or not,
is not essential before such member-elect may discharge the duties and enjoy the
privileges of a member of the National Assembly. Jaigest – PoliRev - 54
o Thus, things like Resolution 8 are unnecessary.
• Therefore, confirmation by the National Assembly of the election of any member
against whom no protest had been filed prior to said confirmation, does not and
cannot deprive the ElecCom of its incidental power to prescribe the time within
which protests against the election of any member of the National Assembly should
be filed.
\

ARTICLE 3

Lost in Translation: Oral Advocacy in a Land without Binding Precedent

By Professor Sabrina De Fabritiis (Janine)

Summary of Abstract:
- Robert Frost – “Poetry is what gets lost in translation.”
- In the world of advocacy, persuation is what gets lost in translation
- Article examines the distinctions in common law and civil law methods of
reasoning
- Analyzes why, in form and in substance, traditional common law oral
argument methods are neither effective nor persuasive when presented in a civil
law jurisdiction
- Although they share similar objectives, arguing based on ​stare decisis i​ s
incompatible in civil law courts
- Article explores how to transfer common law advocacy skills to create an
effective civil law oral argument
Introduction
- Students and practitioners trained in common law systems often present oral
arguments in identical fashion in both common and civil law courts because:
o ​Most law students learn solely common law legal reasoning
[“case book method”]:
o ​[They] are expected to brief cases, discuss judicial opinions,
and deduce governing legal norms
- Statutory interpretation and precedent are central to the very meaning and
concept of the law in the common law legal system
- On the other hand, the language of the Code and writing of scholars comprise
the core of civil law system
- Similar social objectives: individualism, liberalism and personal rights
- Common law theory of precedent are incompatible with the legal method
used to decide cases in civil law courts
- Thus, traditional common law advocacy style is not suitable for a civil law
argument
- Article examines the distinctions between the two methods of legal reasoning
and addresses why the form and substance is neither effective nor persuasive
when presented in a civil law jurisdiction
I. Common Law Origins
1. Evolved in England beginning 11​th Century and traveled through conquests and
colonization to US, Australia, Canada and countries in Africa and Asia
2. “Precedent” – means a prior decision, or a consistent group of decisions which
represent a model to be followed by subsequent decisions; refers to the binding
decisions of higher courts of the same jurisdiction
3. In US – hierarchical relationship exists among the court which along w/ other
features, created the basis for precedent and its binding value
4. Common law – formally bound by prior reported rulings on specific disputes
decided by US SC/ higher courts w/in the state or federal jurisdiction
5. As the common law system grew, it needed legitimacy and predictability in
decision-making.
6. From this arose the doctrine of “stare decisis et quieta non movere” (to stand by
things decided and not disturb settled law)
7. Stare decisis commands judges to apply the law as it has been set out in a prior
case when a higher, or sometimes equal, court made the prior decision
8. It requires that the new case be the same or substantially the same as the
precedent
9. To determine if it is the same or substantially the same, court must consider the
context of the facts and issues in the prior decision
10. If they are essentially different, doctrine will not apply
11. Present day common law relies on stare decisis to maintain consistency when
judges are filling in the gaps of law
12. Ambiguity may be cleared up when a case is decided on a similar issue
13. Common law allows a court to exercise great deal of flexibility when deciding
w/c earlier cases are sufficiently similar w/ the case before it
14. Common law has grown and developed in the hands of judges, who reason
solely from case to case and thereby build a body of law binding subsequent
judges
15. When a court interprets or applies a statute to a dispute, the court’s decision
becomes part of the body of law on the topic the statute addresses
16. To understand what the statute means, a lawyer must read precedent that has
interpreted and applied such statutory provision
II. Civil Law Origins
- Originated in Roman Law
- Codified in the Corpus Juris Civilis of Emperor Justinian, subsequently
developing on continental Europe
- 19​th​ Century – principal states of Western Europe adopted civil codes
- Today, it is the dominant legal tradition in the world
- Exclusive sources of civil law: written constitutions, codes, specific statutes
or decrees, and international treaties.
- Civil law is highly systematized and structured
- relies on declarations of broad, general principles and often ignores details
- There are five basic codes typically found in a civil law jurisdiction:
o ​the civil code
o ​the commercial code,
o ​the code of civil procedure, the penal code, and
o ​the code of criminal procedure
- Civil codes provide the core of the law
- General principles are systematically and exhaustively exposed in the codes
while particular statutes complete them
- However, civil law statutes do not provide specific definitions; instead, they
state principles in broad, general phrases (not explained precisely).
- This structure is in part the result of a desire for a legal system that was
simple, nontechnical, and straightforward–one in which the professionalism and
the tendency towards technicality and complication commonly blamed on
lawyers would/could be avoided
- One way to accomplish this was by stating the law clearly and in a
straightforward fashion so ordinary citizens could read it and understand their
rights and obligations without having to consult lawyers or go to court
- civil law judge applies the law; he does not create it due to the function of a
civil law judge as a civil servant
- The legal scholars are the real protagonist of the civil law tradition as they are
the creative force behind the law, by publishing commentaries on the status of
the law and how it should be interpreted and applied
- Scholarly texts - not a primary source of law, but they are doctrinally
definitive and indispensable to the systematic and comprehensive understanding
of the code; they mold the civil law tradition by using the formal sources of the
law to create a model of the legal system through books and articles
- Legislators and judges accept their ideas and use the concepts developed. As a
result, the doctrine they establish carries immense authority
- Role of judges - to apply the applicable Code provisions to the case before
them
- As such, a civil law judge may sometimes find himself in a position where he
is required to resort to a rulemaking method in order to perform his duty to
decide the case
o ​Ex. judge may be required to formulate concepts in cases
where the Code refers the judge to use his judgment: “fault,”
“good faith,” “public order,” or “public policy.”
- The judge renders a decision where he would propose if he were a legislator
by using his assessment of social, economic and moral factors following the
guiding ideas or values pervading the Code and the legal system as a whole
- Thus, he “creates” a law only to the extent that the judge makes concrete what
was a general and abstract rule in the code
- The judge's decision, however, does not become a source of law, nor do other
judges have to follow that decision.
- In civil law, judicial decisions are not a source of law for it would violate the
convention against judicial lawmaking if decisions of courts were binding on
subsequent courts
- Orthodox view - no court is bound by the decision of any other court.
- In theory, even if the highest court has already spoken on a question and
indicated a clear view of its proper resolution, the lowest court in the jurisdiction
can decide differently
- This power held by the lower court demonstrates there is no concept similar
to binding precedent or stare decisis in civil law
- Prior decisions, however, are not without any respect in the civil law system;
the decisions may have persuasive value to later courts
- Doctrine of jurisprudence constant - a series of decisions forming a constant
stream of uniform and homogenous rulings that have the same reasoning, the
doctrine affords the cases considerable persuasive authority and justifies,
without requiring, the court in abstaining from new inquiry because of its faith
in the prior decisions
- Civil law courts long and continuous use and influence of cases indicates the
current decision is in harmony with the code; deviation from a series of cases as
opposed to a single case would impair the values protected by those earlier
cases.
- However, this repetition of interpretation does not create or change the law
but merely reinforces the rationale of the earlier decisions
III. Advocacy
- the process of trying to convince your audience through the technique of
persuasion
- Oral advocacy - an interactive effort that requires a well-organized
presentation of an advocate’s case as well as spontaneous responses to the
judge’s questions
- Oral argument - presents a valuable opportunity to convince the courts of the
merits of your case and to dispel any doubts a judge may have after reading the
briefs.
- In both common and civil law jurisdictions, advocates should reduce their
cases to the bare essence
- They should have a central theme that will approach from different angles:
facts, law, intent and policy
- Traditional oral argument structure is divided into four component parts:
o ​Opening statement
o ​Road map
o ​Body of the argument
o ​Conclusion
- opening statement - the advocate should cordially greet the judges, and
introduce him or herself as counsel as well as co-counsel where appropriate;
advocate should briefly set forth the procedural posture of the case; what the
 advocate is asking the court to do; affirm, reverse, remand; an advocate should
ask if the court would like a brief statement of the facts
- Road map - advocate should give the court a concise outline or road map of
the issues she will argue to support her position; lets the judges know the order
in which the advocate has organized the issues; advocate should state the points
of her road map in an affirmative and persuasive manner.
- always well-advised to present her strongest points first in the argument. This
will not only attract the court’s attention, but also ensure that these points are not
omitted if time runs out
- Body of argument – advocate should anticipate questions, and should directly
respond to the questions asked; if evasive, may provoke the judge to repeat the
questions or badger the advocate
- Rebuttal – when appropriate, advocate should not reserve more than 3
minutes, perhaps even less for sur-rebuttal; not the time to raise points he
neglected to make in her main argument; advocate should use the time in
response to the most injurious points of the opponent’s argument
- Conclusion - should briefly summarize the important points of the advocate’s
argument in light of the theme she set forth at the beginning of the argument;
where appropriate, the advocate should ask the court if it has any further
questions before thanking the judges and sitting down.
A. Oral Advocacy in Common Law Jurisdiction – The Body of the Argument
- In common law, dominant style of reasoning is inductive:
o ​Courts interpret and synthesize earlier court decisions to
create general legal principles and then apply those principles
to the facts of the case before them
o ​common law advocate must focus on fact patterns
o ​she must analyze cases presenting similar but not identical
facts. She must, from those cases, extract the specific rules,
and then through deduction, determine the often narrow scope
of each rule, and sometimes proposes new rules to cover facts
that have not yet presented themselves.
- Body of argument - must be organized with appropriate attention to the facts
and the law. Otherwise, he runs the risk of an adverse decision
- Advocate must fashion the argument from a close study of prior cases
- It is usually enough for an advocate referencing a particular case to make a
general statement of what the case holds and why the court should apply its
reasoning to the present case, or in the alternative decline to do so. In some
instances, however, controlling cases and those particularly on point should be
driven home by showing how close their facts are to those of the case presently
before the court.
- Precedents play a central role in the body of common-law argument
- Judges endeavor to fit a case into the body of precedent by taking into account
the rationale behind the rules
- Process involves 3 steps of judicial reasoning:
o ​(1) recognition of a similarity between cases;
o ​(2) interpretation of a rule fashioned from the material facts
of the first case; and
o ​(3) application of the rule to the second case.
- Appeal to precedent – often persuasive; ratio: like cases must be treated alike
if a legal system is to be even minimally fair; essentially reasoning by analogy;
urges that the court give weight to a particular prior result regardless of whether
that court believes it to be correct or believes it valuable in any way to rely on
that prior result
- If a court decides to overrule a precedent, it will generally only do so for good
reasons that outweigh the policies of certainty, predictability, and fairness
underlying stare decisis
B. Oral Advocacy in Civil Law Jurisdiction – The Body of the Argument
- In the civil law the dominant style of reasoning is deductive: courts apply
general legal principals to specific situations by reasoning with guidance from
scholars.
- civil law advocate must build the body of her argument around legal
principles tracing their history, identify their function, determining their domain
of application, and explaining their effects in terms of rights and obligations.
- Civil law requires the judge to search for legal concepts in the Civil Code
delineating a pattern of competing interests closely resembling the interests
pressing for recognition in the instant case.
- Where an advocate, arguing in a civil law jurisdiction, argues in the form of
an appeal to precedent, she is asking the civil law judge to do the exact opposite
of what he is bound to do – adhere as closely as possible to the code.
- no legal precept in the Code upon which the judge may fashion a rule to apply
to the advocate’s case, the advocate should still refrain from using an appeal to
precedent
- Doing so would essentially be requesting the creation of amorphous case law,
a concept which is inconsistent with the guiding values of the Civil Code and,
therefore, incompatible with the civil law.
 IV. Transferring Common Law Advocacy Skills to Create
an Effective Civil Law Argument
- Transferring common law advocacy skills to create an effective civil law
argument requires:
o ​(1) an understanding of the purpose of the oral argument, as
well as the governing rules of the court or tribunal hearing the
argument;
o ​(2) an appreciation for the role of the judge hearing the
argument;
o ​(3) a broader grasp of what the common law considers
secondary authority; and
o ​(4) an awareness of the applicability of non-binding
precedent.
- An advocate appearing before a court or tribunal in a civil law jurisdiction
needs to shift her focus to make the applicable code and treaty provisions central
to the body of her argument.
- While the advocate is not wholly precluded from making reference to the
decisions of other courts she must understand that the court is not bound by the
prior ruling.
- Argument must also find support in scholarly doctrines and notions of
customary international law, consisting “of rules of law derived from the
consistent conduct of States acting out of the belief that the law required them to
act that way.
- the advocate should respond to the question in a way that allows the court to
adhere to existing jurisprudence, legal science, and scholarly developed doctrine
and in so doing apply the relevant Code provisions to the case before it.
- In a civil law system, judicial decisions are not a source of law
- a civil law judge applies the law; he does not create it.
- A civil law judge applies general legal principals to specific situations by
reasoning with guidance from scholars.
- An advocate appearing before a civil law judge must present an argument that
requires the application of the law, as contrasted from an argument that requires
interpretation or creation of new law.
- As a result, the civil law advocate must build the body of her argument
around legal principles tracing their history, identify their function, determining
their domain of application, and explaining their effects in terms of rights and
obligations
- An advocate, appearing before a civil law court, must appreciate the role
scholarship, what at common law is considered a secondary source, will play in
her argument.
- In the civil law, legal scholars are the creative force behind the law. Although
scholarly texts are not a primary source of law, they are doctrinally definitive
and indispensable to the systematic and comprehensive understanding of the
code
- because scholars’ commentaries are fundamental as to the status of the law
and how it should be interpreted and applied, an advocate must, in structuring
her argument, use these scholarly doctrines, not merely as research tools, but as
sources which provide support for her argument
- a civil law advocate should weave doctrine into her argument to persuade the
court that a proper application of the governing Code section mandates a ruling
in her favor
Conclusion
- An advocate, trained in a common law jurisdiction, cannot present her
argument in form and substance, in an identical fashion in both common law and
civil law courts
- Although the common law and civil law legal traditions share similar social
objectives, the common law corner stone of stare decisis and theory of
precedent, are incompatible with the Code based method applied by civil law
courts.
- Accordingly, an advocate cannot structure the body of her argument as an
appeal to precedent. Rather, she must begin with a strong understanding of the
substance and structure that comprise a common law argument and then transfer
those skills to create a persuasive civil law argument
- Through an appreciation for the role of the judge hearing the argument, and
through an appreciation for the role of scholars in the civil law system, an
advocate will be able to effectively craft a persuasive civil law argument.
CASE NUMBER 9
 SUMMARY:
Binay, Jr. was charged with administrative and criminal cases in connection
with the allegation that he is involved in anomalous activities attending the
procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of
Makati. Binay, Jr. argued that he could not be held administratively liable
since Phases I and II were undertaken before he was elected Mayor of
Makati and Phases III to V transpired during his first term. His re-election
as mayor for a second term effectively condoned his administrative liability
therefor, if any, thus rendering the administrative cases against him moot
and academic. The Ombudsman issued an order placing Binay, et al. under
preventive suspension. The CA granted Binay’s prayer for TRO enjoining
the implementation of the preventive suspension order.

Whether or not the CA gravely abused its discretion in issuing the TRO and
the WPI enjoining the implementation of the preventive suspension order
against Binay, Jr. based on the condonation doctrine? The Court held No,
the CA’s resolutions were all hinged on cases enunciating the condonation
doctrine. By merely following settled precedents on the condonation
doctrine, which at that time, unwittingly remained “good law”, it cannot be
concluded that the CA committed a grave abuse of discretion based on its
legal attribution. However, the condonation doctrine is simply inconsistent
and permissible under the auspices of the present Constitution which
explicitly mandates that public office is a public trust and that public
officials shall be accountable to the people at all times. Election is not a
mode of condoning an administrative offense.

However, the Court’s abandonment of the condonation doctrine should be

prospective in application. It should be, as a general rule, recognized as
“good law” prior to its abandonment. Consequently, the people’s reliance
thereupon should be respected.

Carpio-Morales v. Court of Appeals (Alyssa)

G.R. Nos. 217126-27 FACTS:
November 10, 2015 | PERLAS-BERNABE, J.
This is a petition filed by petitioner Conchita Carpio Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of the Solicitor General (OSG),
assailing: (a) the Resolution of the Court of Appeals (CA) which granted private
respondent Jejomar Binay, Jr’s request for the issuance of a temporary restraining
order (TRO) against the implementation of the Ombudsman’s Joint Order
(preventive suspension order for 6 months without pay) preventively suspending
Binay and several other public officers and employees of the City Government of
Makati; and (b) the Resolution ordering the Ombudsman to comment on private
respondent’s petition for contempt.
On July 22, 2014, a complaint/affidavit was filed before the Office of the
Ombudsman against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al), accusing them of Plunder and violation of
Republic Act No. (RA) 3019, otherwise known as "The Anti-Graft and Corrupt
Practices Act," in connection with the five (5) phases of the procurement and
construction of the Makati City Hall Parking Building (Makati Parking Building).
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators
to conduct a fact-finding investigation, submit an investigation report, and file the
necessary complaint, if warranted. Subsequently, on March 5, 2015, the 1st Special
Panel filed a complaint (OMB Complaint) against Binay, Jr., et al, charging them
with six (6) administrative cases and six (6) criminal cases.
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous
activities attending the following procurement and construction phases of the Makati
Parking Building project, committed during his previous and present terms as City
Mayor of Makati.
During Binay Jr.’s term, Binay, Jr. issued the Notice of Award for Phase III, Phase
IV, and Phase V of the Makati Parking Building project to Hilmarc's Construction
Corporation (Hilmarc's), and consequently, executed the corresponding contract on
without the required publication and the lack of architectural design, and approved
the release of funds therefor.
Binay, Jr. filed a petition before the CA seeking the nullification of the preventive
suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its
implementation. Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5)
phases of the Makati Parking Building project since Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and Phases III to V transpired
during his first term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability.
Secretary Roxas caused the implementation of the preventive suspension order
through the DILG National Capital Region - Regional Director, Renato L. Brion,
CESO III (Director Brion) and Makati City Vice Mayor Romulo V. Peña, Jr. (Peña,
Jr.) thereupon assumed office as Acting Mayor.
At noon of the same day, the CA issued a Resolution, granting Binay, Jr.'s prayer for
a TRO. Further arguing the acts subject of the administrative cases against Binay, Jr.
were all committed during his prior term, then, applying the condonation doctrine,
Binay, Jr.'s re- election meant that he can no longer be administratively charged.
The Ombudsman filed the present petition before this Court arguing: (a) the CA had
no jurisdiction to grant Binay, Jr.'s prayer for a TRO and (b) the CA's directive for
the Ombudsman to comment on Binay, Jr.'s petition for contempt is illegal and
improper, considering that the Ombudsman is an impeachable officer, and therefore,
cannot be subjected to contempt proceedings. However, Binay, Jr. argues that
Section 1, Article VIII of the 1987 Constitution specifically grants the CA judicial
power to review acts of any branch or instrumentality of government, including the
Office of the Ombudsman, in case of grave abuse of discretion amounting to lack or
excess of jurisdiction, which he asserts was committed in this case.
ISSUES:
1. Whether the Petition filed before the SC, without resorting to the filing of a
motion for reconsideration, was the Ombudsman’s plain, speedy, and adequate
remedy
2. Whether the Court of Appeals (CA) has subject matter jurisdiction over the subject
matter of the petition
3. Whether the CA has subject matter jurisdiction to issue a Temporary Restraining
Order (“TRO”) and/or a Writ of Preliminary Injunction (“WPI”) enjoining the
implementation of the preventive suspension issued by Ombudsman against Binay,
Jr.
RULING:
FIRST ISSUE:
As a general rule, a motion for reconsideration must first be filed with the lower
court prior to resorting to the extraordinary remedy of certiorari or prohibition since
a motion for reconsideration may still be considered as a plain, speedy, and adequate
remedy in the ordinary course of law. However, certain exceptions were crafted to
the general rule requiring a prior motion for reconsideration before the filing of a
petition for certiorari, which exceptions also apply to a petition for prohibition and
one of these exceptions is when and where the issue raised is one purely of law or
where public interest is involved.
This case tests the constitutional and statutory limits of the fundamental powers of
key government institutions - namely, the Office of the Ombudsman, the Legislature,
and the Judiciary - and hence, involves an issue of transcendental public importance
that demands no less than a careful but expeditious resolution. Also raised is the
equally important issue on the propriety of the continuous application of the
condonation doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsman's direct resort to certiorari and
prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances before the CA, is justified.
SECOND ISSUE:
YES, the CA has jurisdiction on the subject matter. The Ombudsman's argument
against the CA's lack of subject matter jurisdiction over the main petition, and her
corollary prayer for its dismissal, is based on her interpretation of Section 14, RA
6770, or the Ombudsman Act.
Upon an assiduous scrutiny of the legislative intent (the reasoning behind the law),
the Court is, however, unconvinced that the provision debated on was Section 14,
RA 6770, as the Ombudsman invokes. In Fabian v. Desiertoni, the Court struck
down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it had
the effect of increasing the appellate jurisdiction of the Court without its advice and
concurrence in violation of Section 30, Article VI of the 1987 Constitution.
Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of the
present 1997 Rules of Procedure which, as above-intimated, applies only to a review
of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not
of quasi-judicial agencies, such as the Office of the Ombudsman, the remedy now
being a Rule 43 appeal to the Court of Appeals.
The second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal - similar to the fourth paragraph of
Section 27, RA 6770 - and thus attempts to effectively increase the Supreme Court's
appellate jurisdiction without its advice and concurrence. It is therefore concluded
that the former provision is also unconstitutional and perforce, invalid. Thus, with
the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter
jurisdiction over the main petition.
THIRD ISSUE:
YES. The CA's certiorari jurisdiction is not only original but also concurrent with
the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the
Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution).
In view of the concurrence of these courts' jurisdiction over petitions for certiorari,
the doctrine of hierarchy of courts should be followed. In People v. Cuaresma, the
doctrine was explained as follows:
This concurrence of jurisdiction is not x x x to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the extraordinary writs.
A becoming regard for that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level ("inferior") courts should be
filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals.
When a court has subject matter jurisdiction over a particular case, as conferred unto
it by law, said court may then exercise its jurisdiction acquired over that case, which
is called judicial power. Hence, with Congress interfering with matters of procedure
(through passing the first paragraph of Section 14, RA 6770) without the Court's
consent thereto, it remains that the CA had the authority to issue the questioned
injunctive writs enjoining the implementation of the preventive suspension order
against Binay, Jr. At the risk of belaboring the point, these issuances were merely
ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under
Section 9 (1), Chapter I of BP 129, as amended, and which it had already acquired
over the main case.

CASE 10
DANILO A. DUNCANO and HON. SANDIGANBAYAN (JAO)
July 15, 2015| PERALTA, J. | Sandiganbayan - Jurisdiction
PETITIONER​​: DANILO A. DUNCANO
RESPONDENTS​​: HON. SANDIGANBAYAN (2nd DIVISION), and HON.
OFFICE OF THE SPECIAL PROSECUTON
Pertinent Law:
"SEC. 4. Jurisdiction.– The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
"A. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the commission
of the offense:
"(1) Officials of the executive branch occupying the positions of ​regional
director and higher​, otherwise classified as ​Grade ‘27’ and highe​​r, of the
Compensation and Position Classification Act of 1989:
Facts:
● Petitioner Danilo A. Duncano is, at the time material to the case, the
Regional Director of the Bureau of Internal Revenue (BIR) with Salary
Grade 26 as classified under Compensation and Position Classification Act
of 1989.
○ On March 24, 2009, the Office of the Special Prosecutor (OSP),
Office of the Ombudsman, filed a criminal case against him for
violation of Section 8, in relation to Section 11 of Code of Conduct
and Ethical Standards for Public Officials and Employees
■ Filed because of the non-filling his SALN in 2002
■ Disclosing his financial and business interests/connection
in Documail Provides Corporation and Don Plus Trading
of which he and his family are the registered owners,
■ And indicating 1993 Nissan Patrol motor vehicle
● His Duncano filed for a motion to dismiss stating that he is not in the
purview or jurisdiction of of the Office of the Ombudsman since he is
classified to have a​ Salary Grade of 26, despite being a Regional director​.
● The OSP’s contention was fact that the position of R​egional Director was
specifically mentioned without indication as to its salary grade signifies the
lawmakers’ intention that officials occupying such position, regardless of
salary grade, fall within the original and exclusive jurisdiction of the
Sandiganbayan.
● The CA denies the motion to dismiss and its MR
●
Issue: WoN Duncano is within the jurisdiction of the Sandiganbayan
Held and Ratio: No. ​the Supreme Court held that the phrase "otherwise classified
as Grade ‘27’ and higher" qualifies "regional director and higher" is apparent from
the Sponsorship Speech of Senator Raul S. Roco on Senate Bill Nos. 1353and 844,
which eventually became R.A. Nos. 7975 and 8249
● To speed up trial in the Sandiganbayan, Republic Act No. 7975 was enacted
for that Court to concentrate on the "larger fish" and leave the "small fry" to
the lower courts.
○ It divested the Sandiganbayan of jurisdiction over public officials
whose salary grades were at Grade "26" or lower, devolving
thereby these cases to the lower courts, and retaining the
jurisdiction of the Sandiganbayan only over public officials whose
salary grades were at Grade "27" or higher and over other specific
public officials holding important positions in government
regardless of salary grade
● Those that are classified as Salary Grade 26 and below may still fall within
the jurisdiction of the Sandiganbayan, provided that they hold the positions
enumerated by the law
● Duncano is not an executive official with Salary Grade 27 or higher.
Neither does he hold any position particularly enumerated in Section 4 (A)
(1) (a) to (g). As he correctly argues, his case is, in fact, on all fours with
Cuyco (stare decisis).
Dispositive:
WHEREFORE, the foregoing considered, the instant petition for certiorari is
GRANTED. The August 18, 2009 Resolution and February 8, 2010 Order of the
Sandiganbayan Second Division, which denied petitioner's Motion to Dismiss on
the ground of lack of jurisdiction, are REVERSED AND SET ASIDE.
 Legal systems- ​to an operating set of legal institutions, Procedures and rules. It
could also include unwritten practices, beliefs and attitudes of those invovled one
way or the other with the law.
Law - ​the center of the legal system
● General sense - mass of obligatory rules for the purpose of governing the
relations of the persons in society.
● Specific sense - rules of conduct, just obligatory promulgated by legitimate
authority, and of common observance and benefit
● Types of law
○ 1987 consti
○ Statutes
○ Admin regu
○ Customs, if authorized by law
○ Judicial Decisions
○ Legal institutions
● Philippine legal system is mixture of civil law and common law regimes.
This was the inevitable result of successive colonization of the country by
Spain and the United States
○ Is a mixture of of common law, civil law and indigenous
customary law and contemporary law as a result of the spanish,
american and japanese colonization.

Civil law vs. Common law summary table

Civil Law Common Law

Looking at the precedence of statutes In re: Max Shoop- the concept of

over court decisions which interprets growing and ever changing system of
them. legal principles and theories

Originated in Roman Law, 450 B.C. Traces its officials begging to ad 1066
when the normans won at hasting and
conquered England

Code law or written law Case law

READINGS
‘Article 3 Deductive method Inductive method
Civil Law and Common Law
Anchors chiefly on the letter of law Relies heavily on equity
A Guide to Philippine Legal Information by Antonio Santos
Judge-proof law Judge-made law