The IBP Journal INTEGRATED BAR OF THE PHILIPPINES Board of Editors ROAN I. L IBARIOS Editor-in-Chief EDUARDO A. L ABITAG Managing Editor D ANILO L. C ONCEPCION F LORIN T. H ILBAY J AIME G. H OFILEÑA M ARIO C.V. J ALANDONI CONCEPCION L. J ARDELEZA N ASSER A. M AROHOMSALIC O SCAR G. R ARO CARMELO V. S ISON AMADO D. V ALDEZ O LIVER B. S AN A NTONIO V INCENT P EPITO F. Y AMBAO , J R . Associate Editors F ROILAN A. M ONTERO Editorial Assistant V IVIAN C. C APIZNON Staff V ICMUND Q. C AMACHO Layout/Design VOLUME 34 NUMBER 2 (OCTOBER 2009) CONTENTS A Survey of Problems in the Law of Treaties and Philippine Practice Merlin M. Magallona ...................................................................................... 1 The Overseas Absentee Voting Act Law & Jurisprudence Danilo L. Concepcion ..................................................................................... 21 Rawls’s Theory of Justice and its Relevance in Adjudication: Nakedness in the Pursuit of What is Fair Oscar G. Raro................................................................................................. 38 Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism Florin Ternal Hilbay...................................................................................... 57 Raising Medical Jurisprudence from its Death Bed Rustico T. De Belen ........................................................................................ 75 Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal Solo V. Tibe ..................................................................................................... 87 Survey of 2008 Court Decisions on Property and Land Registration Eduardo A. Labitag ....................................................................................... 96 The IBP JOURNAL (ISSN 0118-9247) is an official publication of the Integrated Bar of the Philippines Subscription Rates (inclusive of postage): Php1,000.00 (local), US $20.00 (Foreign Individual), US $25.00 (Foreign Institution) Editorial Office Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.ph Email: journal@ibp.ph The IBP Journal accepts papers dealing with legal issues and developments as well as socioeconomic and political issues with legal dimensions. Only manuscripts accompanied by a soft copy (diskette, CD, e-mail, etc.), including an abstract and the curriculum vitae of the author, shall be accepted. All papers to be submitted must be signed. The articles published in the IBP Journal do not necessarily represent the views of the Board of Editors. Only the authors are responsible for the views expressed therein. Synopsis (The Articles in this Issue) International law expert Merlin M. Magallona revisits the age-old debate on the distinction between treaties, executive agreements and international agreements in “A Survey of Problems in the Law of Treaties and Philippine Practice” and discusses how varied interpretations of these instruments appear in Philippine jurisprudence. He then proceeds to dissect how conflicts in the application of international obligations and municipal law are resolved, citing the Gonzales vs. Hechanova and Reyes vs. Bagatsing rulings of the Supreme Court. Magallona then offers a critique of two landmark decisions involving international law issues: Nicolas vs. Romulo, which touched on the validity of the Visiting Forces Agreement (VFA) between the Philippines and the United States, and Tañada vs. Angara, which delved on the repercussions of the World Trade Organization Agreement on Philippine sovereignty. In Nicolas, Magallona concludes that “the theory relied on by the ratio decidendi of Nicolas that the VFA is simply an implementing agreement of the main RP-US Mutual Defense Treaty (MDT) and thus derives its status from the MDT emerges is a fallacy.” In criticizing Tañada, meanwhile, the author cites as “absurd” and “ironic” the pronouncement that norm-making by States “is a medium of derogation of the very sovereign powers expressed in the process of the development of international law by means of treaties.” Danilo L. Concepcion presents the need to have a clearly-defined application of the “residency” requirement of Republic Act 9189 in “The Overseas Absentee Voting Act: Law & Jurisprudence.” He argues that the definition of what constitutes a “resident” for absentee voting purposes is the biggest obstacle to greater participation of overseas Filipinos in the electoral process. Concepcion highlights the potential of this sector, as they constitute roughly ten percent of the entire population and overseas Filipinos enjoy massive economic clout because of their billion-peso remittances every year. In “Rawls’s Theory of Justice and Its Relevance in Adjudication: Nakedness in the Pursuit of What is Fair,” Oscar G. Raro first lays down the two important principles of John Rawls’s theory of justice. One, that “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for all,” and second, “social and economic inequalities are to be arranged so that they are both reasonably expected to be to everyone’s advantage, and attached to positions and offices open to all.” Raro subsequently transposes these philosophical principles and deftly applies them to recent landmark Supreme Court decisions on liberties, namely, Senate of the Philippines vs. Ermita, David vs. Macapagal-Arroyo and Estrada vs. Escritor. Rustico T. de Belen’s “Raising Medical Jurisprudence from its Death Bed” strives to update the legal profession’s outlook of the interesting field that intersects medicine and law. He offers a broad definition of “medical jurisprudence” as dealing “with the laws and jurisprudence in medical education, medical regulation and medical practice, including the appreciation and application of science and technology in the court system and the protection and promotion of rights of all stakeholders in the healthcare delivery system,” thus expanding the concept to fit both modern-day legal and medical realities. In “Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism,” Florin Ternal Hilbay posits that the confluence of printing-associated developments in human history, particularly during the Middle Ages, had a profound effect on man’s reconfigured sense of “self,” because “printing abetted the popularization of such deeply personal human activities as reading and writing, forms of meaning making that are intrinsically individualistic.” He points to an irony that while the production of knowledge through printing expanded the sense of community, it also deepened the sense of individualism. “Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal” by Solo V. Tibe highlights the challenges the labor sector faces in prosecuting cases on appeal with respect to prohibitive docket fees. He proposes exemptions for certain groups of workers, and suggests that the Supreme Court revisit the rule on these types of fees. Lastly, Eduardo A. Labitag presents a comprehensive summary of new jurisprudence in “Survey of 2008 Court Decisions on Property and Land Registration.” A Survey of Problems in the Law of Treaties and Philippine Practice Merlin M. Magallona* I. Treaties in Philippine Law 1. Our immediate interest in treaties lies in the juridical fact that, upon compliance with constitutional requisites, they become part of Philippine law. In the language of the Treaty Clause of the Constitution, it comes as a mandate that: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.1 The Treaty Clause in the 1935 and 1973 Constitutions uses solely the term “treaty”.2 However, under the present Constitution the addition of “international agreement” may raise the question as to whether this could refer to an instrument other than a treaty, such as “international contract”. Two other provisions of the 1987 Constitution make mention of “international agreement” but they fail to clarify this point. In requiring the concurrence of a majority of the Members of the Supreme Court en banc taking part in the deliberation and voting, Section 4(2), Article VIII of the Constitution deals with the constitutionality of “a treaty, international or executive agreement”.3 Under Section 5(2)(a), Article VIII of the Constitution, the exercise of the Court’s power of review pertains to all cases of constitutionality or validity of any “treaty, international or executive agreement”. These two provisions might have served to contribute to ambiguity in making it appear that “international agreement” may appear synonymous with “executive agreement”. It is not implausible at all that ‘international agreement” in the Treaty Clause of the present Constitution may be employed in departure from the classical subjectmatter of a “treaty”. Apart from “treaty” the term “international agreement” may be interpreted to comprehend international agreements set out in Section 20, Article VII of the Constitution, by which “The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines”. These loan and guarantee agreements are of three categories: (a) agreement between the Philippine Republic and another State, (b) agreement between the Republic and an international organization, and (c) agreement between the Republic and a private international * Professorial Lecturer, former Dean and Professor of Law, College of Law, University of the Philippines. 1 Article VII, Section 21. 2 Except that in Section 15, Article XIV, the 1973 Constitution speaks of “international treaties or agreements”. 3 Emphasis added. VOLUME 34 NUMBER 2 (OCTOBER 2009) 1 Merlin M. Magallona banking corporation. The third category does not qualify under the international law of treaties but may reasonably be accommodated in the Treaty Clause when subsumed under “international agreement,” in which the other party is not a subject or person of international law. 2. In one other respect, the Treaty Clause invites clarification. On its face the constitutional text, quoted above, gives the impression that by Senate concurrence alone a treaty becomes national law and as such becomes “valid and effective”. Note that if a treaty, multilateral in character, has not yet entered into force by its own provisions when Senate concurrence takes place, such concurrence by itself cannot make it valid and effective as national law. A treaty that has not yet attained the status of international law for the reason that on its own account it has not yet taken effect cannot be transformed yet into national law. Since a treaty in that case by its own force has not yet become binding international law, there is nothing that Senate concurrence can transform into national law. Senate concurrence by itself may be unable to make a treaty “valid and effective” under the Treaty Clause because of the nature of the means by which the contracting States express their consent to be bound by a treaty. If such consent is expressed by means of “exchange of instruments constituting a treaty”, as permitted under Articles 11 and 13 of the 1969 Vienna Convention on the Law of Treaties, Senate concurrence becomes the basis by which the treaty pursuant to its own provision will enter into force. Most likely that exchange may take the form of an exchange of notes indicating that the constitutional requirements of the parties have been completed. In which case, it is the exchange of notes that determines the entry into force of the treaty, much later than Senate concurrence. Or, in particular, in the case of the 1969 Vienna Convention on the Law of Treaties, in addition to ratification, undertaken by Senate concurrence, the treaty may provide that “the instrument of ratification shall be deposited with the Secretary-General of the United Nations”. In which case, the entry into force is based on “the date of deposit of the thirty-fifth instrument of ratification”.4 Hence, there may be a significant time gap between Senate concurrence and the moment the Philippines becomes a party to the treaty in question. In this light, a treaty in the constitutional sense becomes “valid and effective” if two factors converge, namely: (a) it has entered into force by its own provisions, and (b) it has been concurred in by the Senate as required by the Treaty Clause. 3. Considering that the validity of executive agreements is not derived from Senate concurrence, it is established that they are not governed by the Treaty Clause. The opinion that prevailed in the Constitutional Commission that framed the present Constitution was that the status of executive agreements should be determined by the jurisprudence of the Supreme Court at the time, as exemplified by USAFFE 4 2 See Articles 82 and 84 of this Convention. IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice Veterans Association vs. Treasurer of the Philippines5 in which the Court had affirmed that “Executive agreements may be entered into with other states and are effective even without the concurrence of the Senate”. II. The Treaty Clause in Relation to the Incorporation Clause In an obiter dictum, Secretary of Justice vs. Lantion6 declares as follows: The observance of our country’s legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that [t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. This status of treaties springs from the constitutional mandate itself. This obiter appears to be of the view that conventional or treaty norms of international law are “part of the law of the land” for the reason that they are as well considered by the Supreme Court as “generally accepted principles of international law” under the Incorporation Clause. This may be interpreted to mean that the Incorporation Clause is a method by which both customary norms and conventional rules of international law are internalized into Philippine law and become part of it. Kuroda vs. Jalandoni7 seems to have begun this line of thinking, in which the Court dealt with the issue as to whether The Hague Convention and the Geneva Convention on the rules on land warfare were binding on the Philippines although it was not a party to them. In affirming that the norms of these Conventions “form part of and are wholly based on the generally accepted principles of international law” and were therefore binding on the Philippines “as part of the law of the nation” under the Incorporation Clause, the Court appeared in fact to have given primacy to treaty rules as the content of the Incorporation Clause, as follows: Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its 5 105 Phil. 1030 (1959). See also Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 35 (1961) and Commissioner of Internal Revenue vs. John Gotamco & Sons, Inc., 148 SCRA 36 (1987) 6 G.R. No. 139465, January 18, 2000. 7 83 Phil. 171 (1949). VOLUME 34 NUMBER 2 (OCTOBER 2009) 3 Merlin M. Magallona scope and is not confined to the recognition of rules and principles as contained in treaties to which our government may have been or shall be a signatory.8 An alternative approach lies in characterizing the Hague and the Geneva norms as customary international law and in their application as such, not as treaty rules of the said Conventions. As customary norms — or general international law — they acquire the status of “generally accepted principles of international law” under the Incorporation Clause. Recall that the international legal order maintains two principal sources of law: international convention or conventional international law, and international custom or customary international law. Their juridical character keeps them distinct and separate: whereas international convention binds only States that are parties to the convention or treaty, international custom is binding on all States. In providing the modalities for the internationalization of these two sources of international law into Philippine law, the constitutional framework is structured such that each is assigned its own entry point by which it becomes “part of the law of the land”; the Incorporation Clause for customary norms and the Treaty Clause for the conventional or treaty rules. By the juridical nature of these sources, the entry points or methods of entry are not interchangeable. Treaty rules as such cannot be subsumed under the Incorporation Clause since the Constitution provides a distinctive method in the Treaty Clause for transforming a convention or treaty into national law. It is absurd to say that treaty rules without the benefit of Senate concurrence may assume a binding character as national law by reason of the Incorporation Clause. First, as treaty rule it does not have the status of international law with respect to the Philippines. Secondly, by reason of the restricted binding character of treaties it may not qualify as a “generally accepted principle of international law”, plus the fact that as a treaty rule it is subject to reservations, termination and withdrawal of State parties. Hence, by its nature it is not binding on all States. Most likely the notion that a treaty rule becomes national law by virtue of the Incorporation Clause comes about after the treaty itself of which it is a part has already been concurred in by the Senate. On account of concurrence, the treaty rule becomes “valid and effective” as national law under the Treaty Clause. At such time, the claim that it is “part of the law of the land” under the Incorporation Clause is indeed a plea that it be made national law twice: in the first instance, through the Treaty Clause and, later, under the Incorporation Clause. However, the line of thinking represented by Kuroda has persisted. In Agustin vs. Edu9 the entire Vienna Convention on Road Signs and Signals, as ratified by the Philippines in Presidential Decree No. 207, is described as “impressed with the character of “generally accepted principles of international law” under the Incorporation Clause. Incredibly, this implies that the whole Convention is a 8 83 Phil. 171, at 178. Emphasis added. 9 88 SCRA 195 (1979). 4 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice collection of general principles as customary norms, in the light of the understanding that “principles” as used in the Incorporation Clause mean norms of general character. In the usage by the Chamber of the International Court of Justice in the Gulf of Maine Case, “’principles’ clearly mean principles of law, that is, they also include rules of international law in whose case the use of the term ‘principles’ may be justified because of their more general and more fundamental character”.10 With Agustin, one is likely to be bemused by the impression it may convey that road signs and signals are now to be regarded as general principles of law. Just the same, it serves no purpose to make the Convention part of the law of the land twice, both under the Incorporation Clause and the Treaty Clause. Marcos vs. Manglapus11 makes reference to the right to return to one’s country under Article 12(4) of the International Covenant on Civil and Political Rights, of which the Philippines at the time was already a party. This right, according to the Court, “is not any of the rights specifically guaranteed in the Bill of Rights of the Constitution which deals only with the liberty of abode and the right to travel”. Marcos goes on to say that nevertheless “it is our well-considered view that the right to return [to one’s country] may be considered as a generally accepted principle of international law and, under [the Incorporation Clause of] our Constitution, is part of the law of the land”. In making this affirmation the Court did not seem to be conscious of the fact that at the time the International Covenant which embodies the right to return to one’s country had already formed part of national law by virtue of the Treaty Clause. At any rate, Marcos underscores the problematic outlook that a treaty norm becomes national law by reason of the Incorporation Clause, together with the fact that recourse to the Incorporation Clause is needless as revealed by the facticity of the relevant cases. We may try to interpret these cases in the light of the doctrine of dual character of international-law norms. In the Nicaragua Case,12 the International Court of Justice tells us that “customary international law continues to exist and to apply, separately from international treaty, even where the two categories of law have an identical content”. A customary norm may be codified into a treaty or convention and yet it maintains its separate existence and applicability as such. Rules in a multilateral treaty may develop into customary norms by means of general practice accepted as law on the part of a great number of States, and thus assuming duality, i.e., they remain binding as treaty rules even as they become customary norms.13 Is there any discernible intent in the aforementioned cases that the duality doctrine is the underlying assumption? Whatever might have been the intended operative principle, of supreme importance is that in the factual context of Lantion, 10 ICJ Reports, 1984, p. 246, para. 79. 11 177 SCRA 668 (1989). 12 Concerning Military and Paramilitary Activities In and Against Nicaragua, ICJ Reports, 1986, para. 179. 13 See North Sea Continental Shelf Cases, ICJ Reports, 1969, para. 73. VOLUME 34 NUMBER 2 (OCTOBER 2009) 5 Merlin M. Magallona Agustin and Marcos, the principle of law involved in the controversy has already become part of national law under the Treaty Clause, making the subsequent application of the Incorporation Clause in the effort to make it part of the law of the land again a senseless exercise. III. Treaties in Relation to Statutory Law Guerrero’s Transport Services Inc.14 tells us that “[a]treaty has two (2) aspects — as an international agreement between states and as municipal law for the people of each state to observe”. As municipal law, Abbas vs. Commission on Elections15 informs us, a treaty “would not be superior to . . . an enactment of the Congress of the Philippines, rather it would be in the same class as the latter”. This parity principle has been enlarged to apply to “rules of international law” in general. Lantion,16 Philip Morris17and Mighty Corporation18 have a common formulation: The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. What invites clarification is in case of irreconcilable conflict, which will take precedence, treaty or statute? Obviously, the approaches to resolve the conflict are themselves conflicting, resulting in the derogation of the precedential principle. The principles governing these approaches lack coherence and consistency; altogether they may be in bad need for unification within a more comprehensive juridical frame. 1. Abbas19 employs the later-in-time principle or les posterior derogat priori. its obiter holds: Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter. . . . Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law . . . .20 14 Guerrero’s Transport Services, Inc. vs. Blaylock Transportation Services Employees Association-Kilusan, 71 SCRA 621, 629 (1976). 15 179 SCRA 287 ( 1989). 16 G.R. No. 139465, January 18, 2000. 17 224 SCRA 576 (1993) 18 434 SCRA 473 (2004) 19 Supra, note 15. 20 Id., at 294. Emphasis added. 6 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice The sense of this obiter implies that the later-in-time principle is integral to the parity relation of the treaty and the statute, comparable to that of two legislative enactments on the same subject-matter but are in contradictory terms. The contradiction is deemed to be resolved by the repeal or amendment of the earlier enactment by the later one as the legislative intent. While the later-in-time principle may prove to be a practicable legal formula with respect to legislative enactments, in regard to treaty-statute relation the consequences of applying this principle will have no bearing on the treaty as an international agreement between States Parties. If the Philippines is involved as a party to such a treaty, in the international plane its rights and obligations vis-a-vis the other parties will remain unaffected by its unilateral legislative enactment. Under the international law of treaties, the Philippines cannot justify its failure to comply with treaty obligations by invoking its Constitution or laws, in particular the legislative enactment in question.21 Besides, the operation of the later-in-time principle appears to be mechanical in complete disregard of the substantive content of either the treaty or the statute. It is likely that a later terrorism statute providing for some investigation procedures akin to inhuman or degrading treatment may be made to prevail over an earlier human rights treaty solely by reason of their temporal sequence. 2. Quite incompatible with the later-in-time principle or lex posterior derogat priori is the following ruling pursued in Philip Morris22 and Might Corporation:23 Following the universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal . . . . This appears to be a more specific application of a general formula derived from Lantion: In a situation, . . . where the conflict is irrencilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal court . . . for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances.24 21 Article 27 of the 1969 Vienna Convention on the Law of Treaties provides: “ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . . . .” 22 Supra, note 17. 23 Supra, note at 18. 24 Supra, note 16, at 34. VOLUME 34 NUMBER 2 (OCTOBER 2009) 7 Merlin M. Magallona And, yet, so incongruously, this formulation arrives at the following conclusion: Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statue may repeal a treaty. . . .25 Two contradictory principles find themselves as bedfellows in the same ponencia — infact in the same paragraph. The first one upholds the supremacy of statutory or municipal law as a source of law, lex superior derogat inferior. By its nature as a distinct source of law a statute always prevails over a treaty rule. Whereas in the second — lex posterior derogat priori — the later-in-time takes precedence; in which case the statutory or municipal law prevails only when it is enacted later than the treaty, assuming their conflict to be irreconcilable. 3. Earlier, the primacy of statutory law vis-a-vis the treaty is expressed in Ichong vs. Hernandez.26 Having in mind the claim that the National Retail Trade Act was in breach of the Treaty of Amity with China, Ichong has advanced the view, forming part of its ratio decidendi, thus: But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law . . ., and the same may never curtail or restrict the scope of the police power of the State . . . . 27 This is to be distinguished from the later-in-time principle in that it is silent on whether the earlier statutory law would be “subject to qualification or amendment” by a subsequent treaty. When Ichong goes on with the thesis that a treaty may “never curtail or restrict the scope of the police power of the State, it may have shifted to lex superior derogat inferiori, i.e., that the statute as a source of law with its inherent police power stands superior to the treaty. This shift is of the assumption that a treaty may not qualify as instrument of police power. 4. In Gonzales vs. Hechanova,28 the issues bearing on statute-treaty relation are brought into a larger constitutional frame for the first time in Philippine jurisprudence through the application of the Supreme Court’s power of judicial review, and are provided clear constitutional basis.29 Gonzales deals with the validity of what are 25 Id. 26 101 Phil. 1156 (1957). 27 Id., at 1163. 28 9 SCRA 230 (1963). 29 In this case, judicial review was provided in section 2, Article VIII of the 1935 Constitution. In identical text it is now provided in Section 5(2)(a), Article XVIII of the present Constitution, except with respect to “treaties, international or executive agreement”. 8 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice assumed to be executive agreements authorizing the importation of rice for the consumption of the armed forces in apparent violation of the prohibition set forth in two Republic Acts. Strictly on the relation of statutory law and executive agreement, Gonzales resolves the main issue, as follows: But, even assuming that said contracts may properly be considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with Republic Acts Nos. 2207 and 3452. Although the President may . . . enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto . . . . He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws.30 On its rationale based on separation of powers, Gonzales further explains: Under the Constitution, the main function of the Executive is to enforce the law enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power.31 While Gonzales refers to “statutes enacted prior” to the executive agreements, by the nature of the principle of separation of powers, its rationale may justifiably apply even if the statutes were enacted after the conclusion of the executive agreements. Hence, the superior status of statutory law vis-a-vis the treaty will assert itself without regard to the later-in-time principle. What deserves special interest in Gonzales is the fact that while it insists that the instruments in question are not treaties and, on this account, it affirms that “[t]he American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is the latest in point of time shall prevail, is not applicable to the case at bar,”32 the provision of the 1935 Constitution on judicial review which it has applied in the case at bar pertains to treaty and not to executive agreement, with the result that it necessarily implies that the “executive agreements” mentioned in its statement of facts are subsumed under the term “treaty” as used in the said constitutional provision it has applied. It declares: As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the 30 Id., at 242. Emphasis by the Supreme Court. 31 Id., at 242. 32 Id., at 242-243. Emphasis by the Supreme Court. VOLUME 34 NUMBER 2 (OCTOBER 2009) 9 Merlin M. Magallona Philippines has clearly settled it in the affirmative, by providing in section 2 of Article VIII thereof, that the Supreme Court may not be deprived “of its jurisdiction to review, revise, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question”. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but also, when it runs counter to an act of Congress.33 It must be observed that in the judicial review clause of the 1935 Constitution, as embodied in Gonzales, given above, the term “treaty” stands alone relatively, whereas in section 5(2)(a), Article VIII of the present Constitution the pertinent text runs as follows: “any treaty, international or executive agreement”. Apparently, in the sense that Gonzales interprets the 1935 judicial review clause, as shown above, the use of the term “treaty” in context embraces “international agreement” and “executive agreement”. In the shift from “executive agreement” to “treaty” in the exercise of the Court’s judicial review on the rationale of separation of powers, the premise of Gonzales appears to be that the President’s power in the making of executive agreements solely pertains to him, by which he interferes, defeats or indirectly repeals legislative enactments “that have acquired the status of law”. In the case of treaties, however, the decisive participation of the Senate in the ratification process in representation of the legislature, eliminates the relevance of separation of powers as a constitutional infirmity. Nevertheless, Gonzales retains its significance in terms of the serious implications arising from: (1) It enthrones the supremacy of the legislative enactment over a treaty in a specific constitutional context, i.e., in the interpretation of the judicial review clause of the 1935 Constitution, in which statutory law becomes a standard of validity of a treaty. Gonzales affirms: “[o]ur Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.34 (2) Statutory law as a source of law holds supremacy over a treaty on constitutional ground, not on the temporal sequence of the later-in-time principle. (3) Statutory law does not only “prevail” over a treaty with unspecified legal effect; it renders a violative treaty null and void. (4) Gonzales does away with the doctrine established in Abbas, Lantion, Philip Morris, and Mighty Corporation that a treaty and a statute are in parity. 33 Id., at 343. Emphasis by the Supreme Court. 34 Id., Emphasis by the Supreme Court. 10 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice (5) It may imply a new element in the interpretation of the Treaty Clause: a treaty concurred in by the Senate shall be “valid and effective” as part of the law of the land, provided it does not run “counter to an act of Congress”. Gonzales has remained unstudied. It does not seem to have merited precedential application. In the meantime, statutory law has strengthened its juristic status over a treaty but without substantive explication, as shown in Lantion, Philip Morris and Mighty Corporation: “In a situation . . . where the conflict is irreconsilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal should be upheld by the municipal courts . . . [f]or the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances . . . .”35 IV. The Constitution and the Treaty A. In Reyes vs. Bagatsing,36 the mayor of the City of Manila was on mandatory injunction to issue a permit for a march and rally against the US military bases towards the gates of the United States Embassy, in the absence of a clear and present danger of a substantive evil that could justify the denial of a permit and the Supreme Court finding no justified restriction to the exercise of free speech and the right of peaceful assembly. But the Court went further and introduced what it considered “a novel aspect of this case”, which made it one “of the first impression”. This is addressed to the prospect that had the “context of violence” — the substantive evil sought to be avoided by the clear and present danger test — involved the premises of the US diplomatic mission, Reyes would have justified the denial of the permit, declaring that “If there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the [diplomatic] mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the [U.S.] Embassy”. This view is of the assumption that the circumstances considered as the clear and present danger of violence and disorder would constitute a violation by the Philippines of its obligation as a receiving State under Article 22(2) of the Vienna Convention on Diplomatic Relations. This provision states: “The receiving State is under a special duty to take appropriate steps to protect the premises of the [diplomatic] mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”. In dealing with the “novel aspect of this case”, Reyes takes the risk of subordinating the fundamental freedoms of citizens guaranteed by the Constitution 35 Secretary of Justice vs. Lantion, supra, note 77. 36 125 SCRA 553 (1983). VOLUME 34 NUMBER 2 (OCTOBER 2009) 11 Merlin M. Magallona to the protection of the diplomatic premises of a foreign government, in consequence implying that a treaty may stand over and above the Constitution if certain acts committed in the protest rally and claimed to be in breach of an obligation under that treaty are characterized by the clear and present danger test as substantive evil of sufficient immediacy. In this context, Reyes clashes with the hierarchy of norms by which the Constitution becomes the supreme standard of validity of rules in the legal system. The infirmity of Reyes appears in bold relief in the light of the Supreme Court’s power of review by which the fundamental law is instituted as the ultimate measure of “constitutionality or validity of any treaty, international or executive agreement.”37 Disorder and violence may occur on the occasion of the exercise of free speech and of peaceful assembly in which conduct and utterances outside the constitutional protection may arguably be earmarks of substantive evil sought to be tested by the clear and present danger principle, with the result that these acts may be characterized as outside the shelter of constitutional protection and justifiably subject to containment. But to expand the scope of substantive evil, so as to include the notion that these acts constitute unlawful conduct by which the Philippines would violate its “special duty” under the Vienna Convention on Diplomatic Relations, is to stand on dubious ground. Reyes would justify the denial of permit to hold the protest march and rally — in fact the denial of the exercise of free speech and peacefully assembly — in order to avert a breach of treaty obligation on the part of the Philippines, which Reyes would consider as a substantive evil. Under the circumstances, it would be foolhardy for the foreign government in question to make out a case of breach of treaty obligation on account of the established concept that state responsibility in international law is based on acts of State, not on acts of private persons who are in no way acting as organs or agents of State. In the factual setting of Reyes, the conduct of the rallyists, private individuals as they were, could not be attributed to the Philippines as a State. Hence, their acts and the consequences thereof would not constitute a breach of special duty under Article 22(2) of the Diplomatic Convention. The Philippines is not liable to pay reparation for acts of private individuals. Reyes may approve the suppression of conduct under the free speech and peaceful assembly guaranteed of the Constitution only to discover that it has nothing to do with the responsibility of the Philippines in international law: that the substantive evil is nowhere but in the misconception of the relevant law. The imagined breach of treaty obligation as the substantive evil may have been conceived on the basis of misunderstanding as to the nature of obligation stipulated in Article 22(2) of the Diplomatic Convention. It appears clear that the duty in this provision is “to take all appropriate steps”. In the performance of this duty, the Philippines does not act as a guarantor or insurer that no damage will be 37 12 Constitution, Art. VIII, sec. 5(2)(a). IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice done on the diplomatic premises. It shall have complied with its duty if the Philippines employed all the resources for the purpose within its means and has exercised all the due diligence in protecting the premises but despite the occurrence in question had caused the damage. Moreover, no absolute standard is required on the Philippines as to what steps to take in compliance with this special date; this may be clearly inferred from the word “appropriate”. At any rate, suppression of the right to free speech and to peaceful assembly cannot be characterized as “appropriate steps” in the protection of diplomatic premises. At worse, the Philippines may opt to pay reparation or compensation for the damage; state practice on the said “special duty” indicates that States may choose to pay compensation not out of legal duty but on an ex gratia basis. Between derogation of human rights and payment of compensation, would Reyes be suggesting that the government take the first alternative? It’s a choice too between the Constitution and a treaty, on which Reyes appears to have preferred the latter. Even in objective international law, the right to free speech and peaceful assembly take precedence over a duty or a right in the inter se relations between the sending State and the receiving State under the Diplomatic Convention. Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction is an obligation of Member States of the United Nations, binding on both the Philippines and the United States,38 and thus they are subject to the supremacy clause of the UN Charter in Article 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. Reyes recognizes the binding force of the Universal Declaration of Human Rights (UDHR) on the Philippines but fails to identify its significance in the context of the “novel aspect of this case”, as pointed out above, and instead upholds the special duty under Article 22(2) the Diplomatic Convention over the UDHR provisions on free expression and on peaceful assembly.39 In the Barcelona Traction Case, the International Court of Justice draws our attention to two categories of international obligations: In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection [or inter se obligations]. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can 38 See Charter of the United Nations, Arts. 55 and 56. 39 Article 19 of the UDHR reads: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers”. Art. 20 of this Declaration provides: “Everyone has the right to freedom of peaceful assembly and association”. VOLUME 34 NUMBER 2 (OCTOBER 2009) 13 Merlin M. Magallona be held to have a legal interest in their protection; they are obligations erga omnes.40 The Court gives examples of international obligations of erga omnes character, thus: “Such [erga omnes] obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person ….”41 In this formulation, the undertaking to respect human rights and fundamental freedoms stands on a higher plane as erga omnes obligation than the inter se special duty under the Diplomatic Convention. B. Promulgated more than eight years after Bayan vs. Executive Secretary42 on the constitutionality of the RP-US Visiting Forces Agreement (VFA), Nicolas vs. Romulo43 pursues further the defense of the VFA on the thesis that the United States Government has recognized it as a treaty as required by the Constitution in Section 25, Article XVIII. Nicolas derives its rationale from two reasons: (a) [T]he VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. (b) The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate . . . . Clearly, . . . joint RP-US military exercises for the purpose of developing the capacity to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Mutual Defense Treaty . . . .44 Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case-Zablocki Act . . . . It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.45 40 ICJ Reports, 1970, para. 33. 41 Id., at para 34. Emphasis added. 42 342 SCRA 449 (2000). 43 G.R. Nos. 175888, 176051 and 176222, February 11, 2009. 44 Emphasis added. 45 Emphasis added. 14 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice The first reason appears to be in justification of the claim in the letter of US Ambassador Hubbard, which forms part of the record of the case, that even as the VFA was concluded by the United States Government as an executive agreement, it recognizes it as a binding commitment under international law and therefore it has the effect of a treaty. Nicolas now says that the status of the VFA under the CaseZablocki Act proves further that the VFA as an implementing agreement of the Mutual Defense Treaty is recognized by the United States Government as “a binding international agreement or treaty”. Truly, this point is a falsification of the object and purpose of the Case-Zablocki Act. The most relevant provision of this law enacted by the US Congress on 22 August 1972 is Section 112b(a), which reads: The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs to the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.46 It is plain that the whole range of international agreements of the United States covered by the Case-Zablocki Act are those which are not treaties under Section 2, Article II of the US Constitution.47 The fact that an international agreement — as exemplified by the VFA — is transmitted to the US Congress on account of the Case-Zablocki Act testifies to the fact that it is not a treaty. The classification under this law is clear: an international agreement of the United States is a treaty or not a treaty; if it is not a treaty, then it is required to be transmitted to the US Congress by the Secretary of State under the Case-Zablocki Act. Nicolas, however, introduces a distortion as follows: 46 1 USC 112b(a) 1976 ed., Supp. IV). Emphasis added. 47 This provides that the president “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties”. VOLUME 34 NUMBER 2 (OCTOBER 2009) 15 Merlin M. Magallona Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreement that are policy making in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called Case-Zablocki Act, within sixty days from ratifications.48 Here, Nicolas implies that agreements of the United States that may be in the nature of treaties are either policymaking agreements or implementing agreements, in the process conjuring a non-existent classification of treaties into policy-making and implementing treaties. It seems to be the sense of Nicolas that although they are all regarded as treaties, only the latter are within the scope of the Case-Zablocki Act. In the result, Nicolas utterly revises this law, apparently by way of forcing the twisted interpretation that the VFA is a treaty under US law, even though it has been concluded as an executive agreement. The second reason advanced by Nicolas springs from the notion that the requirement of the Constitution of 1987 for the United States Government to recognize the VFA as a treaty has already been complied with. This had been accomplished by the ratification of the Mutual Defense Treaty of 1951 (MDT) by the two governments. It was concurred in by the Philippine Senate on 12 May 1952 and had the advice and consent of the US Senate on 20 March 1952. Thus the MDT no doubt has the status of a treaty as established under the Constitution of both the Philippine and the United States. On this fact, Nicolas constructs the thesis that the VFA “is simply an implementing agreement to the main RP-US Mutual Defense Treaty,” and therefore it partakes of the MDT’s status as a treaty not only under the Philippine Constitution but as well as under the US Constitution. By this magic formula, the VFA becomes qualified under Section 25, Article XVIII of the Philippine Constitution as an agreement “recognized as a treaty by the other contracting State”, i.e., the United States. The first count of absurdity in this thesis is that the compliance of the VFA with the said constitutional requirement is attributed by Nicolas to the MDT which was concluded almost fifty years before the case at bar came to the Supreme Court, producing the intriguing consequence that the compliance in question was already accomplished fifty years before the constitutional requirement of that compliance came into being — in fact about thirty-five years before the 1987 Constitution came into existence. Surprisingly, under this thesis the VFA may have automatically become a treaty under the US law, although it was concluded by the United States Government merely as an executive agreement — a theory belied by the US Constitution vis-a-vis the Case-Zablocki Act. On three counts, the VFA’s connectivity with the MDT appears dubious at the least. How the two agreements are related, even discounting the distance of about forty-six years between them, is an issue properly addressed to the intention of the 48 16 Emphasis added. IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice parties. Nicolas is unable to show any objective fact in the negotiation or the travaux preparatoire of the MDT that the VFA had been contemplated by the parties as its implementing treaty. Above all, the parties to the MDT do not manifest such an intention in the textual composition of the said agreement. Nicolas may be of the incredible assumption that the parties to the MDT, after more than forty years of actual implementation, would still decide to conclude the VFA as an implementing treaty of the MDT. Under the circumstances, the relation between the VFA and the MDT as set forth in Nicolas is an imputation to both parties of a contrived intent. As against such imputation, the MDT does not indicate any need for an implementing treaty, which Nicolas claims to have materialized as the VFA forty-six years later. On the part of the Philippine Senate in particular, its proceedings on the VFA demonstrate no connection with the MDT as a condition for its concurrence. It may be assumed that the instrument of ratification executed by the President, together with his request for concurrence by the Senate, did not deal with the VFA as an implementing treaty of the MDT. Moreover, the MDT provides for its own implementing mechanism and, for this reason, does not need the VFA to implement its provisions. MDT’s own means of implementation may be read in its Article III, thus: The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of their Parties is threatened by external armed attack in the Pacific.49 In a separate agreement, consisting of Exchange of Notes of 15 May 1958 between the US Ambassador Charles E. Bohlen and Philippine Secretary of Foreign Affairs Felixberto M. Serrano, the means of consultation described in Article III of the MDT, quoted above, has been institutionalized in the Philippine-United States Council of Foreign Ministers. This Exchange of Notes has organized “a permanent Philippine-United States Mutual Defense Board.50 It stipulates that “The purpose of this Board is to provide continuing intergovernment machinery for direct liaison and consultation between appropriate Philippine and United States authorities on military matters of mutual concern so as to develop and improve, through continuing military cooperation, the common defense of the two sovereign countries”.51 Note that the intent of the Bohlen-Serrano Exchange of Notes is to institutionalize an intergovernmental arrangement for the implementation of all 49 II Phil. Treaty Series 727, 728; 177 UNTS 133. Emphasis added. 50 III Phil. Treaty Series 717. Emphasis added. 51 Id., at 718. Emphasis added. VOLUME 34 NUMBER 2 (OCTOBER 2009) 17 Merlin M. Magallona security and defense agreements on a continuing and permanent basis 52 As confirmed by established practice of the two governments, both the MDT and the VFA are subject to the decision-making and implementing procedures of the Foreign Ministers Council and the Mutual Defense Board under the Bohlen-Serrano Exchange of Notes. In the light of these factual details, the theory relied on by the ratio decidendi of Nicolas that the VFA “is simply an implementing agreement to the main RP-US Mutual Defense Treaty” and thus it derives its status as a treaty from the MDT emerges as a fallacy. The fact is that both the VFA and the MDT have a common implementing agreement in the Bohlen-Serrano Exchange of Notes. V. Treaties and Sovereignty In Tañada vs. Angara,53 the Supreme Court confronts the issue as to whether the Agreement Establishing the World Trade Organization (WTO) contravenes the Constitution, in particular provisions which embody the sovereign powers pertaining to the national economy.54 As summarized by the Supreme Court, the petitioners claim that the WTO Agreement, together with its relevant Annexes, “unduly limits, restricts and impairs Philippine sovereignty”.55 In response, Tañada introduces a theory that goes into the basis of its ratio decidendi, declaring that “while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, s a member of the family of nations”.56 Elaborating on this theory, Tañada declares: By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, States, like individuals, live with co-equals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights . . . . The sovereignty of a State therefore cannot in fact and in reality be considered absolute.57 52 Id., See supra note 42 and Annex A in III Phil. Treaty Series 717, at 718-720. 53 272 SCRA 18 (1997). 54 These provisions include section 19, Article II which states: “The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos”; section 10, Article XII, providing that “In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos; and section 12, Article XII which says that “The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive”. 55 Supra, note 53, at 44. 56 Id., at 66. 57 Id., at 66-67. 18 IBP JOURNAL A Survey of Problems in the Law of Treaties and Philippine Practice One absurd feature of this theorizing is that if the status of a treaty as an inherent limitation to sovereignty is to be attributed to the WTO Agreement in a case where its very constitutionality is in question, then what is to be resolved as an issue in Tañada appears to be already determined a priori in its premise, namely, a treaty is a restriction on state sovereignty. Given the assumption that the WTO Agreement is a restrictive attribute of Philippine sovereignty, the end-game is predetermined and comes inevitably: a treaty by its nature is a limitation to sovereignty and this notion easily translates into the conclusion that the WTO Agreement as a treaty cannot possibly be in contravention of the Constitution. Rather, it is the Constitution as an embodiment of sovereignty that may be restricted by the WTO Agreement! Indeed, operating in the international sphere, the WTO Agreement prevails over the Constitution; it provides in Article XVII(4) that “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements”. However, this logic is alien to the context of national law, in which the very constitutionality of a treaty is under attack in a domestic court in the exercise of its judicial review power vested expressly by the Constitution. Tañada takes pain in pointing out that “sovereignty of a state . . . cannot in fact and in reality be considered absolute”. In the context of international law, the notion of absolute state sovereignty is nowhere; arguing against this notion is beating a dead — or better, non-existent — juridical horse. In the international sphere, the sovereignty of one State relates itself to a large number of sovereignties such that there prevails a co-existence of sovereignties under conditions of independence. By its theory of auto-limitation that it is in the nature of treaty that it operates in derogation of sovereignty, Tañada entraps itself in an absurdity: sovereignty realizes its power by treaty-making which Tañada takes as the means by which it derogates itself. The capacity to conclude treaties in fact is the main modality that transforms the formal sovereign powers of the State into real exchanges of political and economic facilities and, in the collective interests of the international community, builds framework of cooperation for resolving crises of global proportion. Treaties constitute a fundamental process in the creation of norms of international law. It is an irony that Tañada implies that norm-making by States is a medium of derogation of the very sovereign powers expressed in the process of the development of international law by means of treaties. It seems to be clear that when Tañada deals with treaties vis-a-vis state sovereignty, they are treated as operating in the international sphere. It employs the concept of a treaty in the relations of States under objective international law, removing it from the context of national law and transporting its application to the international plane. The case at bar is in the nature of a constitutionality suit of the WTO Agreement and, hence, the treaty in question must be contextualized in the regime of national VOLUME 34 NUMBER 2 (OCTOBER 2009) 19 Merlin M. Magallona law, not in the international sphere as Tañada does. In this context, it is subject to the standard of validity under the Constitution not under objective international law as it operates in the international plane. Within domestic jurisdiction, a treaty cannot in any way be transmogrified into an instrument in derogation of Philippine sovereignty as embodied in the Constitution. The supremacy of the Constitution is pre-supposed in the nature of judicial review as applied in the case at bar, involving as it does the determination that a treaty does not derogate the Constitution. The confusion in Tañada suggests a general guideline that the application of the concept of a treaty, or simply its usage, must have the clarity of context. Certainly, a domestic court cannot imbibe an outlook derogatory of the constitutional sovereignty from which it derives its juridical status. 20 IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence Danilo L. Concepcion* Republic Act No. 9189 or The Overseas Absentee Voting Act of 20031 was enacted to address the concern, quite clear in the deliberations of the Constitutional Commission that drafted the 1987 Constitution, for thousands of Filipinos abroad who wish to participate in Philippine elections but have not been given the opportunity to do so because of the lack of an enabling statute. At the time of the drafting of the constitution, there were about two million Filipino migrant workers.2 Today, their number has ballooned to approximately ten percent of the population or about nine million Filipinos, enough to constitute a political block that can make or unmake politicians and affect the outcome of elections. These overseas workers have remained Filipinos and have retained strong family ties in the Philippines. In fact, most of them regularly return to the country to renew such relationships. The truth, of course, is that for many of these citizens their decision to leave the country is purely an economic decision, arising out of the need to seek greener pastures. It is reasonable to assume that a large number of them, given the choice of working abroad and a comparable local employment, would rather have stayed with family and friends and enjoy life here. Outside their homeland, these Filipinos are exposed to various stressful conditions, such as difficult employers or bosses, culture shock, cold or unbearably hot weather, and homesickness. Many of them are even abused and maltreated. It is also a reality that migrant workers have become a powerful lobby group. Given the need to organize themselves for self-protection and self-promotion, overseas workers have become a loud voice with connections to local non-government organizations, party-list groups, and perhaps even international organizations. It also goes without saying that the sheer amount of money that they remit to the country is a source of political leverage, especially considering that such remittances have practically kept the economy afloat during repeated cycles of economic downturn. In recognition of these contributions, and of the fact that they have remained Filipinos, the Constitutional Commission saw it fit to mandate the legislature to enact an absentee voting law. * Professor, College of Law, University of the Philippines; Bar Reviewer in Civil Law, U.P. Law Center. Professor Concepcion regularly participates in the annual Migrant Workers Conference in Japan. 1 “An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes.“President Gloria Macapagal-Arroyo signed the bill on February 13, 2003. It was published on February 16, 2003 in the Today and The Daily Tribune newspapers. 2 II Record Of The Constitutional Commission (19 July 1986). VOLUME 34 NUMBER 2 (OCTOBER 2009) 21 Danilo L. Concepcion The original proposal for the directive to the Congress to pass an absentee voters statute, made by Commissioner Florenz D. Regalado, was worded as follows: The National Assembly shall prescribe a system which will enable qualified citizens temporarily absent from the Philippines or place where they are registered to cast their votes.3 After some deliberations among the commissioners, the proposed section was amended, and it now appears in the present Constitution as Article V, Section 2, first paragraph: The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The present Constitution was ratified in 1987 and it took Congress more than a decade to implement Article V, Section 2, finally passing an enabling legislation only in 2003. We have had the experience of two elections under the Absentee Voters Act, the first in 2004 and the second in 2007, and so far, reports indicate that the participation of Filipinos abroad in the system has been quite dismal. As per the transcript of the proceedings of the Joint Congressional Oversight Committee on Absentee Voting,4 during the 2004 elections there were only 359,295 registrants out of which only 233,092 actually voted. This is way below the number of qualified Filipino absentee voters. The proceedings of the oversight committee also showed that the Department of Foreign Affairs spent a total of PHP112.71 million for the entire process. During the 2007 elections, the Commission on Elections was able to register another 142,665 absentee voters, still way below potential.5 I submit that the reasons for this failure are shared among the Constitutional Commission, the Congress and the Supreme Court. The failure of the Constitutional Commission can be traced to the lack of a clear guidance as to how the “residence” requirement in the Article on suffrage should be construed. On the part of the Congress, what it should have done was to simply exempt absentee Filipinos from the residence requirement of Article V which provides: Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year, and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. 3 Id. 4 Session of December 13, 2004. 5 See Mission: Get Overseas Pinoys To Register & Vote, available at http://www.abs-cbnnews.com/print/34577, last visited on June 23, 2009. 22 IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence It is within the powers of Congress to eliminate the residence requirement for non-resident Filipino voters, considering the language of the Constitution and the vague intention of the members of the Constitutional Commission. With respect to the Supreme Court, what it should have done was to declare Section 5(d) of Republic Act No. 9189 as unconstitutional as it effectively bars Filipino citizens who are permanent residents of other countries from participating in the system and thus exercising their constitutional right. Constitutional Commission It is important to point out that even during the deliberations among the members of the Constitutional Commission, there was not a clear consensus as to whether the residence requirement for absentee voting should apply. This may be gathered from the following exchange between Commissioners Blas Ople and Joaquin Bernas: With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. x x x x x x x x x In the previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1…. VOLUME 34 NUMBER 2 (OCTOBER 2009) 23 Danilo L. Concepcion I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution.6 (italics supplied) For purposes of interpreting the Constitution and Republic Act No. 9189, we should bear in mind that there are three categories of Filipinos qualified to vote as absentee voters: 1. Permanent residents or those who have transferred their residence from the Philippines to another country; 2. Non-permanent residents or those who work outside the Philippines for an extended period of time, and who usually return to the Philippines after the expiration of their employment contract. 3. Transients. If we analyze Commissioner Ople’s statement, we see that he is referring to the first two categories of Filipinos and these are the overseas workers he seems to have wished exempted from the residency requirement. Permanent residents are those who “adhered to their Filipino citizenship notwithstanding strong temptations” and “are exposed to embrace a more convenient foreign citizenship.” The other group is composed of the non-permanent residents who “find that they have to detach themselves from their families to work in other countries with definite tenures of employment.” What he was asking the Constitutional Commission was to consider a general amendment that will cover both categories and allow them to effectively exercise their right of suffrage. Commissioner Bernas’ response, however, was to stick to the settled jurisprudence emphasizing the requirement of residence in the exercise of the right of suffrage: Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of “residence” in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of “residence” in Election Law. Allow me to quote: A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in other places, practice of his avocation, reengaging in business. When an election is to be held, the citizen who left his birthplace to improve his 6 24 Id. IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence lot may decide to return to his native town to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities. So, they are here registered as voters as they have the qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider abandonment or loss of such residence of origin. In other words, “residence” in this provision refers to two residence qualifications: “residence” in the Philippines and “residence” in the place where he will vote. As far as residence in the Philippines is concerned, the word “residence” means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile.7 We can gather from Commissioner Bernas’ statement that he wanted to emphasize that the residence requirement is indispensable to the exercise of the right of suffrage. This is why he stated that “there may be serious constitutional obstacles to absentee voting.” For him, the only way to avoid the constitutional obstacle is if “the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile.” This position is quite absurd because, as members of the Constitutional Commission, they as a body have the power to entirely eliminate the residence requirement for absentee voters. Commissioner Ople was a bit subtle in sarcasm when he replied to Commissioner Bernas: Thank you for citing the jurisprudence. It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of suffrage to Filipinos abroad, this will call for a logistical exercise of global 7 Id. VOLUME 34 NUMBER 2 (OCTOBER 2009) 25 Danilo L. Concepcion proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned.8 Clearly, what Commissioner Ople had in mind was a constitutional provision that dispensed with the limitations of the jurisprudence Commissioner Bernas cited. To follow the jurisprudence would have made it impossible for permanent residents to exercise their right of suffrage in a jurisdiction in which they are no longer residents even if they retained their citizenship in such a jurisdiction. This is why Commissioner Ople was hinting about a proposal that goes beyond the “wise jurisprudence of the past.” More importantly, what Commissioner Bernas recited as jurisprudence is not really appropriate to the situation of permanent residents. The case of Faypon vs. Quirino9 and its more recent reiteration, Romualdez-Marcos vs. Commission on Elections10, refer to those situations in which the status of the citizen as a resident is unquestioned. The only question in these cases is whether the citizen should be allowed to vote in one of the electoral districts in the country, even if he had resided in some other place. Therefore, the voter in question is inside the country and not voting in absentia. On the other hand, an absentee voter is, by definition, a citizen who is voting outside his country. The problem with respect to permanent residents who wish to vote in absentia is precisely that under settled jurisprudence, they are disqualified already from voting in the Philippines because they have lost one of the qualifications for voting, i.e., residence. As I have said earlier, there is nothing in the powers of the Constitutional Commission from preventing its members from entirely eliminating the requirement of residence insofar as permanent residents are involved. We can only surmise that the failure to do so is partly because of the inability to distinguish among the different categories of potential absentee voters under the constitution. By way of example, in the case of Filipino contract workers or those who have not been granted permanent resident status in other countries, there is no question that they are qualified voters because they have never lost their residence here in the Philippines. Their absence from the Philippines is wanting in animus manendi. For this category of Filipinos, what is needed is simply a law that grants the Commission on Elections the authority to go outside the country and collect the votes of these absentee voters. This is 8 Id. 9 G.R. No. L-7068, December 22, 1954. 10 248 SCRA 300 (1995). The Court held: For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. 26 IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence because they do not suffer from any of the disqualifications from exercising their right to vote. The only problem is that, since they are outside the country on the day of the elections and there are no authorized polling places beyond the Philippines, then they cannot vote. Interestingly, one of the more perceptive members of the Constitutional Commission, Christian Monsod, declared that “the reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest”.11 Unfortunately, even this statement was made in relation to a query made by another commissioner with regard to transients12 and has little to do with the situation of permanent residents in other countries. Despite the substantial amount of time spent on the matter, ultimately the Constitutional Commission was not able to come up with an unequivocal position on the status of permanent residents. This explains the bland phraseology of Article V which simply says Congress “shall provide a system for absentee voting by qualified Filipinos abroad.” This is not necessarily bad. In fact, this generality in the text of the Constitution is an opportunity for the legislature to be creative with its constitutional mandate to recognize the right of Filipino citizens abroad to vote. I submit that because the members of the Constitutional Commission equivocated on the details of the proposed system for absentee voting, then the Congress is given substantial latitude in crafting that system. This includes the discretion to determine who among the categories of absentee voters are eligible to participate in such a system. This is consistent with the text of the Constitution itself which mandates the Congress to establish such a system. The assumption here, of course, is that the system should be an effective one or one that truly implements the rights of overseas workers to vote. Republic Act No. 9189 In response to repeated clamors for the passage of an enabling act, the Congress finally passed Republic Act No. 9189, making it available for implementation during the 2004 synchronized elections. As one might expect, the statute was highly controversial and the bone of contention focused on the qualifications for registration. The relevant provisions of Republic Act No. 9189 provide: 11 I Records Of The Constitutional Commission (July 21, 1986). 12 Id. Mr. Regalado. Before I act on that, may I inquire from Commissioner Monsod if the term “absentee voting” also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes. Mr. Monsod. I think our provision is for absentee voting by Filipinos abroad. Mr. Regalado. How about those people who cannot go back to the places where they are registered. VOLUME 34 NUMBER 2 (OCTOBER 2009) 27 Danilo L. Concepcion Section 4. Coverage.—All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. Section 5. Disqualifications.—The following shall be disqualified from voting under this Act: x x x x x x x x x d) An immigrant or permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. One can easily notice that Section 5(d) of the statute is a compromise. It is clear from the text that immigrants or permanent residents are, by default, disqualified from voting. However, by executing an affidavit which amounts to nothing other than a formal promise to “resume actual physical permanent residence in the Philippines not later than three (3) years” from approval of registration, the citizen is allowed to vote. What this means is that the Congress considered residence as an indispensable requirement for voting, unmindful of the wide latitude given to it by the Constitution. The affidavit, from Congress’ point of view, is the strategy by which it seeks to circumvent the residence requirement of the Constitution. That this is just the case is evident in the debates in Congress: SENATOR ARROYO: Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme than any statute that we may enact. Let me read Section 1, Article V, of the Constitution, entitled “Suffrage.” It says: Section. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. 28 IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence Now, Mr. President, the Constitution says, “who shall have resided in the Philippines.” They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this?” SENATOR ANGARA. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of “residence” is synonymous with “domicile.” As the gentleman and I know, Mr. President, “domicile” is the intent to return to one’s home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we—that Congress—must provide a franchise to overseas Filipinos. If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. SENATOR ARROYO . Mr. President, when the Constitution says, in Section 2 of Article V, it reads: “The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.” The key to this whole exercise, Mr. President, is “qualified.” In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And “residence” is a qualification. I will lose votes here from permanent residents or so-called “green card holders”, but the Constitution is the Constitution. We cannot compromise on this. The Senate cannot be party to something that would affect or impair the Constitution. x x x x x x x x x SENATOR ANGARA. It is a good point to raise, Mr. President. But it is a point already well-debated even in the Constitutional Commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate VOLUME 34 NUMBER 2 (OCTOBER 2009) 29 Danilo L. Concepcion unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. This is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence— and I think this is so well-entrenched that one need not argue about it— ”residency” has been interpreted as synonymous with “domicile”. But the third and more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipino who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise—to enfranchise them and empower them to vote.”13 We can see in this debate, in more emphatic language, something similar to the earlier exchange between Commissioners Ople and Bernas. Just like Commissioner Bernas, Senator Arroyo was more bound to the teachings of past jurisprudence and therefore was more insistent on the residence requirement as it appears in Article V, Section 1. On the other hand, Senator Angara, just like Commissioner Ople, was less tradition-bound and was more interested in the practical problem of finding ways to effectively allow permanent residents to vote. The difference is that Commissioner Ople was apparently biased in favor of an outright exemption of even permanent residents from the residence requirement, while Senator Angara, true to his reputation as a good strategist, was trying simply to accommodate the requirement by using the affidavit. The result, of course, is Section 5(d) which, as was pointed out earlier, disqualifies permanent residents (because they lack the residence requirement under Article V, Section 1) but at the same time allows them to vote if they indicate their intention to resume actual physical permanent residence. This is clearly a bad compromise and the task of justifying it was left to Supreme Court in the case below. Macalintal vs. Commission on Elections Immediately after the passage of Republic Act No. 9189, petitions were filed before the Supreme Court questioning the constitutionality of the statute. Not surprisingly, the challenge was primarily lodged against Section 5(d) of the statute, on the ground that it violated the residence requirement of Article V of the Constitution. In Makalintal vs. Commission on Elections14, the Supreme Court sustained the constitutionality of Section 5(d). On the surface, this is well and good for 13 Transcript of the Senate Proceedings (October 1, 2002), 10-12. 14 405 SCRA 316 (2003). 30 IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence permanent residents for they can now finally exercise the right of suffrage guaranteed them under the Constitution. However, the basis of the decision might not be sufficient to effectively allow them to truly participate. The petition in Makalintal raised several issues. As summarized by the Supreme Court: Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that case, the Court held that a “green card” holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.15 That these were petitioner’s arguments is not surprising. After all, these were the very questions raised during the deliberations in the Constitutional Commission and in the drafting of Republic Act No. 9189. The Supreme Court’s grounds for dismissing the petition, however, are difficult to tie together. In fact, the justifications offered were quite contradictory. The reason for this is that if one carefully scrutinizes the decision of the Supreme Court, what becomes evident is that there are two separate bases for the dismissal of the petition. Either of them could have stood alone. Together, however, these justifications are incompatible. Let me illustrate: First Rationale. The first theory of the Supreme Court is directly related to Commissioner Ople’s position that the absentee voter’s provision is an exemption from the residence requirement. Thus: The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters: 15 Id, at 628. VOLUME 34 NUMBER 2 (OCTOBER 2009) 31 Danilo L. Concepcion x x x x x x x x x Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. (emphasis supplied) x x x x x x x x x Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term “qualified Filipinos abroad” with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective “qualified” with respect to Filipinos abroad, the assumption is that they have the “qualifications and none of the disqualifications to vote”…. (emphasis supplied) x x x x x x x x x It is clear from the discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the first time. (italics in original) It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. (italics in original)16 Second Rationale. The second theory of the Supreme Court can be traced to Senator Angara’s strained compromise on the residence requirement. Under this 16 32 Id, at 641-642. IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence theory, the residence requirement under Article V, Section 1 still stands and Section 5(d) complies with that requirement. This is because the affidavit required under Section 5(d) is evidence of residence, specifically, animus revertendi: Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a condition to qualify to vote in a political exercise.” To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain.17 In another passage, the Supreme Court held: Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to his/ her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while providing for safeguards to a clean elections. x x x x x x x x x Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the “qualified citizen of the Philippines abroad” is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by Republic Act No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost 17 Id, at 645-646. VOLUME 34 NUMBER 2 (OCTOBER 2009) 33 Danilo L. Concepcion his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing an affidavit required by Sections 5(d) and 8(c) of the law.18 These two rationales are incompatible. The Supreme Court said that the residence requirement no longer applies because the Constitutional Commission intended to create an exception with respect to overseas voters. This rationale ends the entire debate because all that the absentee voter has to show is that he is a Filipino and in all other respects qualified to vote. But the Supreme Court also said that, under the second rationale, the affidavit under Section 5(d) is evidence that the voter concerned never lost his residence here in the Philippines. This implies that the residence requirement still applies to overseas voters, including permanent residents. Under this rationale, the affidavit is the means by which the requirement is complied with. So which is which? This is very important because the rationale for the decision has important implications on the success of the operation of the statute itself. In fact, the reason why R.A. No. 9189 has not been very effective in enticing the millions of potential overseas Filipinos is precisely the ambiguity in the rationale used by the Supreme Court. If the ultimate basis of the decision is that permanent residents are exempted by the Constitution from the residence requirement, we can expect the number of registrants to balloon to large numbers. On the other hand, if the true basis of the decision is that the affidavit in Section 5(d) is the method of compliance with the residence requirement, then we cannot expect the number of registrants to increase substantially. There are two reasons for this conclusion: 1) Permanent residents are those who have formally settled already in a country outside the Philippines. Especially because the law requires that they be “recognized as such in the host country”, we cannot expect them to abandon their status just so they can exercise their right to vote. Although the right to vote is something that citizens should treasure, it is unreasonable to impose, as a consequence of or precondition for exercising that right, the loss of that status. Considering that the right to live permanently in countries such as the United States and United Kingdom is such a highly valued status for Filipino workers, it is almost unfair to make them choose between voting and coming back by making them sign an affidavit that they will “resume actual permanent physical residence” in the country within a period of three years. 2) The act of signing the affidavit in Section 5(d) might be used in the host country as a legal justification for re-classifying the permanent resident’s status, to the detriment of the Filipino. Obviously, the affidavit, once in the hands of the host 18 34 Id, at 647-648. IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence country’s immigration officials, can be used against the permanent resident. This might have tax, civil, social and political implications for the Filipino concerned. It is difficult to imagine how such permanent resident can choose jeopardizing himself and the well-being of his family just because he wants to vote in Philippine elections. One can say, of course, that the Makalintal decision uses both rationales in upholding the important provisions of Republic Act No. 9189. However, the problem with this position is that both justifications can be used both for and against the absentee voter, depending on the perspective of either the Philippines or the host country. It is therefore the uncertainty created by the decision that makes Filipino permanent residents abroad very hesitant in participating in the system. It is only natural for them to err on the side of caution and try to avoid possible impairments of their status as permanent residents. After all, it is a status that many of us crave and work hard to achieve. As long as the affidavit requirement of Section 5(d) exists, permanent residents abroad will not be enticed into joining other absentee voters such as contract workers who, under Philippine jurisprudence are considered domiciliaries of this country. Nicolas-Lewis vs. Commission On Elections The legal controversy over the right of Filipino permanent residents abroad was again litigated in the Supreme Court. This time around, it was a group of permanent residents headed by businesswoman Loida Nicolas-Lewis who brought the matter to the Supreme Court. This case was complicated by the fact that petitioners were not just Filipinos but so-called “duals” or dual citizens. Under Rep. Act No. 9225 or the Citizenship Retention and Reacquisition Act of 200319 former Filipinos may again become Filipinos through an expedited process and still retain their non-Filipino citizenship. They may also exercise civil and political rights.20 19 An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending for the Purpose Commonwealth Act No.63, As Amended, and for Other Purposes. 20 Section 5 of Rep. Act No. 9225 provides: Civil and Political Rights and Liabilities.—Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee Voting Act of 2003"and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, that they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in the active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. VOLUME 34 NUMBER 2 (OCTOBER 2009) 35 Danilo L. Concepcion The question in the case of Nicolas-Lewis vs. Commission on Elections21 is whether or not dual citizens such as petitioners are entitled to vote as absentee voters in Philippine elections pursuant to Republic Act No. 9189. According to the Supreme Court, long before the May 2004 national and local elections, petitioners sought registration and certification as overseas absentee voters, only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs, they have yet no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution.22 Deciding in favor of the petitioners, the Supreme Court held: As may be noted, there is no provision in the dual citizenship law— R.A. 9225—requiring ‘duals’ to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that ‘duals’ are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote…. 23 It would thus seem that in the eyes of the Supreme Court, dual citizens stand on equal footing with permanent residents as far as the right to vote as absentee voters is concerned. This is correct because the only difference between dual citizens and permanent residents is that the former holds Filipino citizenship as a second citizenship. Both of them, for purposes of the residence requirement, are presumptively permanent residents of the host country. Which means that in order for either of them to be able to vote in absentia they must execute the affidavit required under Section 5(d) of Republic Act No. 9189. Ultimately, both classes of Filipino absentee voters must make a legal promise to resume actual physical permanent residence in the Philippines. Then again, the Supreme Court makes another turn around by holding that: In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the 21 497 SCRA 649 (2006). 22 Id, at 652. As per the COMELEC Memorandum submitted to the Supreme Court, supra, at 658:4. ‘DUALS MUST FIRST ESTABLISH THEIR DOMICILE/RESIDENCE IN THE PHILIPPINES 4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The ‘duals,’ upon renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently acquired a second citizenship, (i.e., Filipino) then, ‘duals’ must, for purposes of voting, first of all, decisively and definitely establish their domicile through positive acts. 23 36 Id, at 659. IBP JOURNAL The Overseas Absentee Voting Act Law & Jurisprudence other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non-resident may, as an exception to the residency prescription in the preceding section, be allowed to vote.24 This is really confusing and unfortunate and does not help the cause of absentee voters. Conclusion What I have tried to emphasize in this article is that the confusion over the interpretation of Article V, Section 2 of the Constitution is not an empty effort at hair-splitting or a useless exercise in argumentation that only lawyers can appreciate. Instead, this confusion that has been carried over to the legislative and adjudicative arenas has practical implications for many migrant workers who both passionately care about their political rights and their economic situation. I submit that if we wish to empower our migrant workers by giving them equal or approximately equal civil and political rights as local citizens, then we should interpret the Constitution as well as the statutes in such a way as to make the exercise of the right not simply nominal but effective and real. To give the millions of Filipino permanent residents abroad the right to vote in absentia only under the condition that they sign an affidavit that they shall resume actual physical permanent residence in the Philippines is to give with one hand and take away with the other. The loss of the status as permanent resident is so high a price to pay for the right to cast a single ballot. This is unfair considering the reality that many of these overseas Filipinos are there not to enjoy their lives, but to make a personal sacrifice in order that their relatives and loved ones in this country can live decent lives. Their sacrifice benefits not only their families and friends but the entire Philippine economy. Moreover, many of them are well-aware of the political, economic, and social events here at home. The advances in technology and communications have made it possible for everyone to be physically away but virtually present. One can even say that overseas Filipinos, because of their separation from the life here in the Philippines, have more time and greater inclination to know more about their country than the ones who already live here. After all, only those who are away will miss the idiosyncrasies of life in the Philippines. I submit it is in this context that we should read both the Constitution and the law which, in the first place, was meant to recognize the contributions to Philippine society of this unique group of citizens. 24 Id, at 654. VOLUME 34 NUMBER 2 (OCTOBER 2009) 37 Oscar G. R aro Rawls’s Theory of Justice and its Relevance in Adjudication: Nakedness in the Pursuit of What is Fair Oscar G. Raro* I Introduction: Unclad at Birth The depiction of the three nude Graces touching each other in Botticelli’s Primavera1 heralding the arrival of spring may just as well be the graphic illustration of mental nudity required by John Rawls as a condition sine qua non before one can formulate a theory of justice. Undress before you can even touch! Is the touch of the naked, with passions disengaged, the symbol of enlightenment for the pursuit of what is fair denied of those garbed in the garments of their experiences, biases, and mind-sets? Must we all be bare to participate in a discourse of justice? May the depiction be merely analogous to our pristine state of mind as at the moment of our birth or is it the bareness of our mind and body at the time of procreation? What is actually required in nakedness is, to Rawls, a metaphorical veil to cover what may arguably be equated to Habermas’s individual biases and experiences in a lifeworld.2 Thus, as a precondition for rational discourse, the participants, instead of being shed of the mind’s plumage of biases and experiences as really meant, are shielded by a fleeting “veil of ignorance,” as later formulated. Perhaps, the formulation is an attempt to distance oneself from the cliché “naked in the face of the Maker” or from the fairy tale, “The Emperor’s New Clothes.”3 Is Rawls’s theory, in the ultimate analysis, nothing more than a fairy tale as a camouflage for despair or a purely academic discussion as the unbidden rebirth of the social contract theories * A.B., Ll.B., University of the Philippines, Ll.M. (candidate), San Beda Graduate School of Law, Editor-in-Chief, San Beda Graduate School of Law Journal (2006-2007) 1 The Primavera is a painting by the Italian Renaissance painter Sandro Botticelli, c. 1482. It is housed in Uffizi Gallery of Florence. 2 Except that for Habermas, such experiences may be brought into the discourse; while to Rawls must be shed or “veiled.” (Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 55, [William H. Rehg trans. 1996], The MIT Press, Cambridge, Massachusetts. 3 A Danish fairy tale written by Hans Christian Andersen and first published in 1837, as part of Eventyr, Fortalte for Børn (Fairy Tales, Told for Children). It was originally known as Keiserens Nye Klæder. The story is a type of fableor morality play with a cautionary message: “Just because everyone else believes something is true, doesn’t mean it is. “ 38 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair of bygone days? May his metaphysical “veil of ignorance” and practical theory of “reflective equilibrium” find application in adjudication to resolve hard cases, or justify equitable decisions when strict application of the law will clearly be unjust? While at it, may we conclude that Rawls’s theory actually supports, in that limited sphere of application, the natural law theory as against legal positivism in deciding cases? These are the unashamed attempts at erudition endeavored in this paper. II Another Contractarian Emerges: The Initial Difficulty The Social Contract theory may generally be stated thus: Men in a “state of nature,” being naturally self-interested, yet rational, will choose to submit to the authority of a sovereign in order to be able to live in a civil society conducive generally to their own interests. While the full exposition and defense of the social contract theory may rightfully be credited to Thomas Hobbes,4 and after him, to John Locke5 and Jean-Jacques Rousseau,6 the theory was, in fact, insinuated as early as the Platonic dialogues. In the account of Plato, Socrates’ decision to accept the death penalty—which was clearly the result of trumped-up charges and wrong conviction in the courts—is borne out of his strong and unbending desire to honor an “agreement” made between him and the Laws. In his conversation with Crito while in prison, Socrates said that if he agrees to flee, the State and the Law will confront him with these words: “ ‘It is a fact,’ then they would say, ‘that you are breaking covenants and undertakings made with us, although you made them under no compulsion or misunderstanding, and were not compelled to decide in a limited time; you had seventy years in which you could have left the country, if you were not satisfied with us or felt that the agreements were unfair.”7 4 Thomas Hobbes, Leviathan (1651) in 1 The Great Political Theories 296, Michel Curtis (ed.), Avon Books, New York (1961); Rawls, however, while admitting that his theory of justice is an attempt to carry “to a higher level of abstraction the familiar theory of the social contract” — which even include that of Kant’s, beginning with the Foundations of the Metaphysics of Morals — he would expressly exclude that of Hobbes as it “raises special problems” in the context of his theory. (Rawls at 11). 5 John Locke, Two Treatises on Government, Peter Laslett [ed.], Cambridge University Press, Mentor Book, New York (1963). 6 Jean-Jacques Rousseau, Discourse on the Origin and Foundations of Inequality Among Men & Social Contract, in The Essential Rousseau, Lowell Bair (trans.), A Mentor Book, New York (1974). 7 Plato, Socrates in Prison: Crito in The Last Days of Socrates 93, (Hugh Tredennick [ed.], Penguin Classics, Baltimore, Maryland (1954); The judgment of conviction against Socrates, however, may be taken as an argument in favor of Rawls’s insistence that those seeking a rule of fairness must be freed from self-interests so that those similarly inclined may not “band together” during the process of discourse to advance their group’s interests. One will note that in this case in 399 B.C., Socrates was haled to court as result of a public action brought by Meletus, Anytus, and Lycon, whose “self-pride he had offended” and whose common interests against him advanced and allowed during his prosecution. Arguably, this could not have happened had Socrates’s accusers and judges were “veiled in ignorance” in passing judgment. But, of course, Rawls and his theory would come thousands of years later, not of any use to Socrates now, whose memories remained merely in Plato’s loyal, even while romanticized, accounts. VOLUME 34 NUMBER 2 (OCTOBER 2009) 39 Oscar G. R aro In A Theory of Justice, 8 Rawls likewise started with some semblance of the contractarian’s “state of nature,” his quest similarly for an ordered society and the rules to govern its inhabitants. His starting point, much like the contractarians, is that men are naturally “self-interested, but rational.”9 This, to Hobbes, in the state of nature, made life “brutish, nasty, and short” 10 even while Rousseau, in his romanticism, viewed man in this state as a “noble savage.”11 The “nobility” perhaps, in man’s rational faculty and innate quality of compassion which substituted for laws when there were none 12; the “savageness” being merely descriptive of his uncivilized state? Rawl’s setting, however, is a highly abstracted “state of nature,” not such uncivilized and savage state, but of a “modern democratic society” where the pursuit of justice remains elusive with what appears to be an impossible task of taking into consideration each individual concerns, the society marked, as it is, “by conflict as well as an identity of interests,”13 which makes it “seldom well-ordered . . . for what is just and unjust is usually in dispute.”14 Thus, the difficulty, as he expounded in Political Liberalism is that modern society “. . . is characterized not simply by a pluralism of comprehensive religions, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines . . . not affirmed by citizens generally . . . or even by nearly all citizens.” 15 The problem, therefore, is on how this individual self-interestedness may be repressed in the face of the reality that the participants would naturally bring and advance their respective biases, prejudices, experiences, and interests in the process of discourse; or in the words of a noted professor of law and philosophy, “particularities” such as “tastes, gender, preferences, profession, and inclination,” among others.16 Much like the contractarians, Rawls advances a theory when civil order and justice may be attained in this world of individual selfishness. The key to Rawls is a 8 John Rawls, A Theory of Justice, The Belknap Press of Harvard University Press (1971) (hereinafter, “Rawls,” unless the source is otherwise indicated from his other books and works). 9 “The choice which rational men would make in this hypothetical situation of equal liberty, assuming for the present that this choice problem has a solution, determines the principles of justice.” (Rawls at 12, italics ours); “One feature of justice as fairness is to think of the parties in the initial situation as rational and mutually disinterested.” (Id. at 13); “I assumed throughout that the person in the original position are rational.” (Id. at 142) 10 Thomas Hobbes, in Leviathan, (supra): ‘No arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.’ 11 Rousseau himself never used the exact phrase “noble savage.” The association of the term to him proceeds from his notion, as outlined in his Discourse on Inequality, that all humans share that “nobility” by nature, which they lose once a society is formed. The term first appeared in English with John Dryden in 1672, though it originated earlier, in 1609, with Lescarbot’s Histoire de la Nouvelle France. Lescarbot noted that among the Mi’kmaq, everyone was allowed to hunt—an activity enjoyed only by Europe’s nobility. This led Lescarbot to remark that “the Savages are truly noble.” 12 Jean-Jacques Rousseau, Discourse on the Origin and Foundations of Inequality Among Men in The Essential Rousseau 166, Lowell Bair (trans.), A Mentor Book, New York (1974). 13 Rawls at 126. 14 Rawls at 5. 15 John Rawls, Political Liberalism, Columbia University Press, New Ed. (1995). 16 Fr. Ranhilio C. Aquino, E-class lecture and discussion in the course Theories of Law and Justice, 14 October 2006, transcript of which may be obtained from San Beda Graduate School of Law. 40 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair shared sense of justice (may be likened to Rousseau’s “compassion”)17 which provides “bonds of civil friendship” and, therefore, a self-imposed limit in the pursuit of selfish individual ends.18 The next question, however, is how this common and innate19 conception of justice,20 a revived common denominator, may be utilized to fairly arrive at rules of social and distributive justice acceptable to all who may be later affected by such rules. Rawls’s theory, therefore, is basically, procedural in character.21 Thus, we may point out this early that when Rawls describes his theory as “justice as fairness,” the reference is to conditions and process that are fair by which the rules are crafted by discourse, out of which justice is borne out: “[T]he principles of justice are agreed to in an initial situation that is fair.”22 We must, therefore, disabuse our mind that the Rawls’s objective is to define “justice” as an allencompassing end, rather than for what it is, as means; he himself admitting that his “topic” is “the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.” On a smaller scale, therefore, he is concerned with the rather limited idea of what is fair in the distribution of what are abundant as rights and duties, and of what are presumably scarce, as “income and wealth”: the symbolical pie which he calls “social primary goods.”23 His proposed solution, which consists of variant mechanics of the concept of distributive justice, is what mandates Rawls’s continuing relevance to this day. III THE C ONCEPT OF THE O RIGINAL P OSITION I GNORANCE AND V EIL OF Just as Rawls’s setting is hypothetical, so is his requirement of the participants’ state of mind—some sort of apostasy where only an intuitive sense of justice and rationality remained—is also hypothetical. Thus, Rawls begins with a postulatory status where the participants would not be encumbered by their predilections and interests. This is necessary for it “seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles” and to “make impossible to tailor principles to the circumstances of one’s own case.”24 17 See Note 12. 18 See Note 13. 19 “Intuitive” is Rawls preferred term: “No doubt any conception of justice will have to rely on intuition to some degree.” (Rawls at 41) 20 See Note 13. 21 “The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of PURE PROCEDURAL JUSTICE as a basis of theory.” (Rawls at 136, emphasis ours). 22 Rawls at 12. 23 Fr. Ranhilio C. Aquino, A Philosophy of Law: An Introduction to Legal Philosophy 162, Central Book Supply (2006). 24 Rawls at 18. VOLUME 34 NUMBER 2 (OCTOBER 2009) 41 Oscar G. R aro The participants in the rule-making process must, therefore, undergo some sort of cleansing of the spirit and of the impedimenta of their individual experiences and situations: “One excludes the knowledge of those contingencies which sets men at odds and allows them to be guided by their prejudices.”25 In the later version of his theory Rawls says that the “veil” conceals from the parties even the basic particulars of their status such as sex, age, physical strength, profession, religion, among others. This process which covers plurality of interests and situations, Rawls picturesquely termed the “veil of ignorance.” With our ideal rule-makers properly “veiled” in that original position, how may they arrive now at a fair procedure and, thereafter, rules, acceptable to all? How may one participate at all in the process knowing that any reference to bargaining strengths and weaknesses is forbidden? The key here lies in Rawls’ belief that a “mutually disinterested rationality”26 and intuitive sense of justice will self-regulate the discourse in that the participants will be contented with advancing their “system of ends as far as possible,”27 but not farther, as such rationality would seek its own level of tolerance before breaking point. They will only “strive for as high an absolute score as possible”28 without conferring benefits or imposing injury to one another. In short, reason and sense of justice, like water, will seek their own level. That this is so is actually argued by Rawls on the basis of mutual respect and natural duty, not as a matter of pure decorum, but as practical imperatives: “Also respect is shown in a willingness to do small favors and courtesies, not because they are of any material value, but because they are an appropriate expression of our awareness of another person’s feelings and aspirations. Now the reason why this duty would be acknowledged is that although the parties in the original position take no interest in each other’s interests, they know that in society they need to be assured by the esteem of their associates. Their self-respect and their confidence in the value of their own system of ends cannot withstand the indifference much less the contempt of others. Everyone benefits then from living in a society where the duty of mutual respect is honored. The cost to self-interest is minor in comparison with the support for the sense of one’s own worth.”29 As to the duty of rendering mutual aid, the same has likewise practical connotations. Leaning on Kant, Rawls states: 25 Rawls at 19. 26 Rawls at 144. 27 Id. 28 Id. 29 Rawls at 338. 42 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair “Similar reasoning supports the other natural duties. Consider, for example, the duty of mutual aid. Kant suggests, and others have followed him here, that the ground for proposing this duty is that situations may arise in which we will need the help of others, and not to acknowledge this principle is to deprive ourselves of their assistance.”30 This far, Rawls has constructed a situation, an ideal setting, where the principles of justice may be spawned. This now brings us to the next question: What are these principles of justice by which the envisioned ordered society may be governed? This transports to the next point. IV The Two Principles of Justice: The Priority Rule From these situations and motivations, Rawls concludes that rationality would easily allow the adoption of at least two principles or rules of justice: 1. “Each person is to have an equal right to the most extensive basic liberty compatible with a similar system of liberty for all; and 2. “Social and economic inequalities are to be arranged so that they are both a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.”31 Later, Rawls would restate32 these two principles of justice as follows: 1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and 2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the leastadvantaged members of society. In the first principle, the reference to “basic liberty” is to political liberty as say, the right to vote, freedom of speech and assembly, liberty of conscience and freedom of thought, freedom to own property, freedom from arbitrary arrest, detention and seizure as defined by the concept of the rule of law.33 In the second principle, 30 Rawls at 338 citing Immanuel Kant, The Foundations of the Metaphysics of Morals, Academy edition vol. 4, p. 423. 31 Rawls at 60. 32 John Rawls, Justice as Fairness: A Restatement, Cambridge, Massachusetts: Harvard University Press (2001). 33 Rawls at 61. VOLUME 34 NUMBER 2 (OCTOBER 2009) 43 Oscar G. R aro known as the “Difference Principle,” the reference to social and economic conditions where “inequality” is recognized is principally to income and wealth.34 Here, therefore, is a recognition that the economic well-being of the citizens is an integral component of a just and ordered society. May this be a Rawlsian concept of the common good? The two principles are not self-balancing in the sense that deficiency in one may be satisfied by a compensation from the other. They must both be satisfied, but in “lexical” order; that is, the first principle of equality of basic liberties must first be satisfied before the second principle of unequal distribution of income and wealth may be designed to yield the “greatest benefit to the least advantaged.” One will note, however, that when Rawls revised his second principle of justice from the original proposition that income and wealth must be arranged to be reasonably expected to be to everyone’s advantage, to the current restatement as greatest benefit to the “least advantaged,” his theory emphasizes its altruistic flavor even while maintaining its egalitarian bent exemplified by the first principle. This seems to suit modern day democracy when what is constitutionally guaranteed is merely the equal distribution of political liberties, but only equality in opportunity when it comes to income and wealth. It is a fact that inequality exists when it comes to economic wealth. A law which mandates its equal distribution, as in political liberties, will have to approach the principle of socialism. Thus, in a democracy, what may only be prescribed as principle is that inequality must be such that it must be arranged to produce the “greatest benefit to the least advantaged.” In a local setting, may it be said that the constitutional precept that “[t]he State shall promote a just and dynamic social order that . . . will free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all,”35 one of those Rawlsian legal “arrangements?” Does the goal of the national economy of a “more equitable distribution of opportunities, income, and wealth” illustrative of this principle of the “greatest benefit to the least advantaged?”36 Perhaps, President Magsaysay’s famous quip that “those who have less in life should have more in law” has finally found its way into rational discourse? But why should there be an order of priority between the two principles of justice? Here, Rawls is most beautiful in what he insinuated as self-compensating adjustment in the nature of the two principles: “The supposition is that if the persons in the original position assume that their basic liberties can be effectively exercised, they will not exchange 34 Id. 35 CONST., Article II, Section 9. 36 CONST. Article XII, Section 1. 44 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair a lesser liberty for an improvement in their economic well-being, at least not once a certain level of wealth has been attained.”37 That as basis, Rawls lays down the reason for the priority of liberty over the principle of wealth distribution: “as the conditions of civilization improve, the marginal significance for our good of further economic and social advantages diminishes relative to the interests of liberty, which become stronger as the conditions for the exercise of the equal freedoms are more fully realized.” 38 This necessary adjustment of natural diminution of our desire for wealth vis-àvis our interests in liberty is further supportive of Rawls’s willingness to constantly reexamine, revise, and prune any initially established principles of justice to fit our “considered judgment.” This brings us to another important principle in Rawls’s theory. V Reflective Equilibrium: The Need for Continuing Justification While Rawls wished the principles of justice to transcend generations, implying a certain character of permanency, he recognizes that such principles may not at all times be stable and sustainable. In the Original Position and thereafter, such principles may necessitate adjustment to bridge discrepancies, to harmonize contractual situations, or to address circumstances which may sway judgment to revise. In such a case, Rawls is amenable to change: “We can either modify the account of the initial situation or we can revise our existing judgments, for even the judgments we take provisionally as fixed points are liable to revision. By going back and forth, sometimes altering the conditions of contractual circumstances, at others withdrawing judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses our considered judgments duly pruned and adjusted.” 39 This condition of searching for the most favored description of the situation, and the need to “work from both ends,” pruning and adjusting as the process takes place, is what Rawls describes as “reflective equilibrium.” It is an equilibrium because it describes a situation when principles, judgment, and circumstances balance themselves in the process. And it is reflective, because it comes from the discovery 37 Rawls at 542. 38 Id. 39 Rawls at 20. VOLUME 34 NUMBER 2 (OCTOBER 2009) 45 Oscar G. R aro of what “principles the judgments conform and the premises of their derivation.”40 This may be akin to the Socratic method of discourse, or to Hegelian dialectics. At all events, Rawls even insinuates that his adopted uncertainty on the moral force or ethical neutrality of his theory may later be subject to justification so that its “entire conception” may fit shifting judgments.41 Rawls’s theory of “nakedness” or impartiality in the Original Position and willingness to adjust in the quest for Reflective Equilibrium finds continuing relevance and practical application in adjudication. This is so because the theory opens itself to continuing adjustment to seek balance in a world when laws continue to be legislated and judges continue to interpret them, resulting in precedents with the character of an evolved and interpreted law. This transports us to the next point. VI The Philippine Setting for Rawls’s Relevance in Adjudication Rawls’s theory of justice, particularly, his desire at interim adjustments of its standards, is at home in common law jurisdictions. On the other hand, for those countries which strictly observed legal positivism in their interpretation and system of laws, his theory of Reflective Equilibrium is dead in the water for there could be no room for “shifting judgments” outside of the letter of the law. But the first misconception that may be committed by those attempting to analyze the legal system in the Philippines is to categorize it to be purely governed by law in the Austinian formulation as that “system of norms which derives its binding force, directly or indirectly, from some organ of the state invested with legislative authority under the constitution”42 excluding in the process custom, morals, or even conscience, as a source of social control or as basis for resolving disputes. Aside from the fact that custom and morals are parts of our civil law provisions,43 the court’s power of judicial review44 has left open the inroads of these non-legal considerations as bases in the resolution of disputes and thereafter as binding jurisprudence, as norm of compulsion. It is, therefore, naïve to draw a line between law and morals in the analysis of the current Philippine legal system. If at all, the 40 Id. 41 Rawls at 579. 42 Lloyd, Dennis, The Idea of Law 226. 43 “Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customsor public policy shall compensate the latter for the damage.” (Article 21, Civil Code); Contracts whose “cause object or purpose is contrary to law, morals, good customs, public order or public policy” are “inexistent and void from the beginning.” (Article 1409, Id.); “The contracting parties may establish such stipulation, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy (Article 1306, Id.); Also Article 1346, Id. 44 First formulated by Chief Justice John Marshall in Marbury v. Madison, 1 Cr. 137 (1803). 46 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair distinction becomes significant only in the event of conflict between law and custom in that “customs which are contrary to law, public order or public policy shall not be countenanced”45 nor may law be considered “repealed” by custom.46 Even in the United States, customs and the innate sense of what is moral and just are actually observed regardless of legal foundation such as in libel and obscenity cases being claimed as beyond the protection of the First Amendment. Punishment for such libelous and obscene publications “was long thought to require no constitutional justification.” Hence, Chief Justice Hughes in Near v. Minnesota47 simply assumed that one of the exceptions to the rule of no prior restraint was enforcement of “the primary requirements of decency … against obscene publications”, and he likewise took it for granted that the law of criminal libel rested upon a “secure foundation”48 not referring to the Constitution as the basis of such foundation. The second misconception here, however, is that because of this seeming fusion of law and sense of justice as norms of conduct, the Philippines, in effect, rejects altogether legal positivism as a system of law. This is simplistic as it proceeds from a handicapped understanding of what the positivists are actually saying. The positivists do not reject conscience or the dictates of what is just as a source of normative conduct. What they are saying is simply that for these considerations to have coercive authority they may either be included as part of the law or adopted by jurisprudence.49 Thus, while indeed the positivists seek a distinction between law and custom as what is and what ought to be,50 the distinction is not for the purpose of application of one to the exclusion of the other. Thus, as John Austin would formulate it, the “existence of law is one thing; its merit and demerit another.”51 Even H.L.A. Hart would concede that “in some legal systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values”52 and — “[t]o use in the description of the interpretation of laws the suggested terminology of a fusion or inability to separate what is law and ought to be will serve (like earlier stories that judges only find, never make law) only to conceal the facts, that here is anywhere we live among uncertainties between which we have to choose, and that the existing law imposes only limits on our choice and not the choice itself.”53 45 Civil Code, Article 11. 46 Id. Article 7. 47 283 U.S. 697 (1931) 48 C. Herman Pritchett, Constitutional Civil Liberties 86 (1984 ed.) 49 Anthony D’Amato, Professor Nagel’s Reflections on Cardozo, 2 Cardozo Law Review 589 (1981). 50 The formulation is David Hume’s 51 Green, Leslie, Legal Positivism, The Standford Encyclopedia of Philosophy (Spring 2003,Edition), http:// plato.standord.edu/archives/spr2003/entries/legal positivism (last visited 18 Junwe 2006) 52 H.L.A. Hart, The Concept of Law 53 H.L.A. Hart, Positivism and the Separation of Law and Morals. 71 Havard Law Review 593 (1958) VOLUME 34 NUMBER 2 (OCTOBER 2009) 47 Oscar G. R aro Thus Diamond Stanley’s thesis on that innate separation of law from morals as a matter of basic natural contradiction will find no place in Philippine jurisdiction. As Stanley would insist: “Efforts to legislate conscience by an external political power are the antithesis of custom: customary behavior comprises precisely those aspects of social behavior which are traditional, moral, and religious—in short, conventional and nonlegal. Put another way, custom is social morality, the relation between custom and law is basically one of contradiction not continuity. “Thus, law is symptomatic of the emergence of the state. Custom— spontaneous, traditional, personal, commonly known, corporate, relatively unchanging—is the modality of primitive society; law is the instrument of civilization, of political society sanctioned by organized force, presumably above society at large and buttressing a new set of social interests. Law and custom both involve the regulation of behavior but their characters are entirely distinct …..”54 Even while Benjamin N. Cardozo would note that Blackstone55 had exaggerated the “creative energy of custom in the development of common law,” he would nonetheless recognize a “custom of judicial decision, not of popular action,” citing Roscoe Pound and that “it is doubtful whether at all stages of legal history, rules laid down by judges have not generated custom, rather than custom generated the rules,56 relying on Gray.57 The cudgel of the positivists, therefore, is not law directed against custom, but rather legislated law against “undefined” natural law and “nebulous” natural rights. Perhaps, Dean Jorge Bocobo, in incorporating nuances of the natural law theory in the Civil Code—when he said that “while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, [thus] it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes”58— had hoped for a corresponding set of procedural rules from the Supreme Court on the mechanics of how unlegislated sense of justice or morals may be applied as a source of right or a cause of action. In further justification, Dean Bocobo would state as the basis of the incorporation of customs, morals, and conscience in our Civil Code that “[i]n the last analysis, every good law draws its 54 Diamond, Stanley, The Rule of Law versus the Order of Custom in In Search of the Primitive (Transaction Publishers, 1981) 55 Blackstone’s Commentaries on the Laws of England 56 Cardozo, Benjamin, The Nature of the Judicial Process 60 (Yale University Press) 57 Gray, “Nature and Sources of the Law,” se. 420. 58 Report of the Code Commission on the Proposed Civil Code of the Philippines, in Sison, Carmelo, Civil Code Reader 586-587 (2005); Also, Rivera, Juan, The Father of the First Brown Race Civil Code 57 (1978 ed.) 48 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair breath of life from morals, from those principles which are written with words of fire in the conscience of man.”59 VII The Sufficiency of Judicial Review to Address the Problem of What Ought to Be In England from whence the common law tradition has been incorporated into the American legal system, there is no recognized power of judicial review. Such a power in fact was not even envisioned by the American Founding Fathers when they crafted the U.S. Constitution.60 It took a question on a midnight appointment of William Marbury to a justice of the peace position for the District of Columbia by a departing president, John Adams, on the eve of Thomas Jefferson’s ascension to office as the newly-elected president, for judicial review to take tangible shape. The case was Marbury v. Madison61 where the newly-appointed Chief Justice John Marshall argued for the court that “the constitution controls any legislative act repugnant to it” as “one of the fundamental principles of our society.” The Constitution, he said “is the supreme law of the land” and since it is the “duty of the judicial department to say what the law is” the Supreme Court must overturn any law of Congress that violates the Constitution. “A law repugnant to the Constitution” he asserted flatly, “is void.” This is the very first pronouncement of the U.S. Supreme Court declaring an act of Congress unconstitutional, and in the process, appropriating for itself what could have remained, by silence, as constitutionally unintended power of judicial review.62 “The U.S. Constitution makes no explicit statement about the nature of the Court’s power even when a case admittedly falls within its jurisdiction.”63 Before Marbury, the general belief is that the Court has no “final authority” to review national legislative enactments since “the fact that the Constitution is supreme does not settle the question of who decides what the Constitution means.”64 After Marbury, however, Alexander Hamilton’s categorization of the judiciary as the “least dangerous branch”65 would be further eroded as the Marshall Court would continue, in small steps albeit slightly noticeable, to assert the Court’s power of judicial review66 culminating, even beyond Marshall, in the judiciary becoming the only branch which could declare any act of both the executive and the legislative departments unconstitutional, a sort of “judicial veto” of official acts. 59 Id. 60 Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics1 (1962). 61 1 Cr. 137 (1803) 62 Garraty, John A., Marbury v. Madison, Historical Viewpoints 180 (1971 ed.) 63 McCloskey, Robert, The American Supreme Court 9 (University of Chicago Press, 1960 ed.) 64 Id. at 8 65 Hamilton, Alexander, The Judges as Guardians of the Constitution, 78th Federalist. 66 Garraty, John A., Marbury v. Madison, Historical Viewpoints 191 (1971 ed.) VOLUME 34 NUMBER 2 (OCTOBER 2009) 49 Oscar G. R aro As one of the benefactors of Jeffersonian democracy, even if not by choice, but by subservience, the Philippines becomes a further benefactor of Chief Justice Marshall’s theory and exercise of judicial review. But even while the U.S. Constitution was silent on the issue, we have upped the ante, by categorical “constitutionalization” of judicial review: “Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. “Judicial power includes the DUTY of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of ANY BRANCH OR INSTRUMENTALITY OF THE GOVERNMENT.”67 The broad sweep and compass of this power of judicial review as we crafted it in this jurisdiction, which is not only a right for the court to exercise but a duty, is sufficient to draw from customs, conscience, and morality for sources of ideal parameters in adjudication along lines of Rawls’s Reflective Equilibrium. After all, “no judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”68 Indeed, the Supreme Court had not been wanting in “legitimizing” conscience and sense of justice as norms via judicial decisions. In doing so, the court had, in effect, engaged in the balancing process of discourse as Rawls envisioned. Let us see. Presidential Proclamation 1017 Cases In David v. Macapagal-Arroyo69 and consolidated cases70 the Supreme Court posed the question: “How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?” In Rawlsian context, the query may just as well be rephrased as the next question in this paper: How does one reconcile the shifting concerns towards justice against the text of a law to craft a norm obeyed not only by coercion, but also by respect? The answer as we will later expound in the succeeding question is, for now, simply this: adjustment to attain Reflective Equilibrium where respect for political and human rights, Rawls’s First Principle of Justice, guides the process at the outset. 67 CONST., Article VIII, Section 1, emphasis supplied. 68 Civil Code, Article 9. 69 G.R. No. 171396, May 3, 2006 70 Cacho-Olivarez v. Honorable Secretary, G.R. No. 171409; Escudero v. Ermita, G.R. No. 171485; Kilusang Mayo Uno v. Arroyo, G.R. No. 171400; Cadiz v. Executive Secretary, G.R. No. 171489; and Legarda v. Arroyo, G.R. No. 171424 50 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair In David, the validity of Presidential Proclamation No. 1017 and its implementing rules contained in General Order No. 5, was put in issue. The proclamation declares a State of National Emergency which empowers the President to enforce obedience to all decrees orders and regulations promulgated by her personally or upon her direction. By virtue of the proclamation, U.P. professor Randolf S. David and his companion, Ronald Llamas, were arrested during the dispersal of rallyists along EDSA; the offices of the Daily Tribune were raided by operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP; Anakpawis congressman Crispin Beltran was arrested by the police while leaving his farmhouse in Bulacan; Bayan Muna representative Satur Ocampo’s drivers were taken into custody when Beltran eluded arrest; and other party-list congressmen threatened with the same fate and prevented merely by staying in the premises of the House of Representatives. The issues brought by the cases are one for preservation of human rights, i.e. freedom of the press, speech, and of assembly, that may not be defeated by the expediency of a presidential proclamation where the chief executive arrogates unto herself lawmaking and martial law powers. The Supreme Court, declared as constitutional the right of the President to make a call to prevent or suppress lawless violence. After all, there is not even a need to make such a call, lawless violence being suppressible by the fact of its own illegality. The proclamation, however, is unconstitutional when the call does not relate to lawless violence. The arrogated power of lawmaking by decrees and the resultant suppression of individual liberties as rights to expression and assembly and freedom of the press are likewise declared unconstitutional. Thus, in David, what we have is the nullification of a proclamation by the President as it amounts to imposition of a norm which obviously failed to meet Rawls’s First Principle of Justice, and therefore, of any claim to legitimacy. Even Habermas, another influential legal philosopher, would point out that even from historical perspective, “the core of modern law consists of private rights that mark out the legitimate scope of individual liberties and are tailored to the strategic pursuit of private interests.”71 More, “[i]n the legal mode of validity, the facticity of the enforcement of law is intertwined with the legitimacy of a genesis of law that claims to be rational because it guarantees liberty.”72 In this sense, Habermas’s insistence on the primacy of political rights coincides with Rawls’s First Principle of Justice. Thus, while the legitimacy of the law is, to Habermas, dependent upon its rationality, a quality which ensures human right; to Rawls it is a given before embarking on a rational discourse in the pursuit of what is just. The Supreme Court, even while perhaps unaware that it treads on Rawls’ principles of justice, is clearly zealous of their protection when it underscores in David the following libertarian points: 71 Habermas, Between Facts and Norms 27 (Italics mine) 72 Id. at 28 (Italics mine) VOLUME 34 NUMBER 2 (OCTOBER 2009) 51 Oscar G. R aro 1. The right to peaceably assemble in respect to public affairs is a “necessary consequence of our republican institution,” complementary to the right of speech; 2. These rights are not to be limited, much less denied, nor subject to prior restraint or censorship, such as a permit, except in a showing of “a clear and present danger of a substantive evil that Congress has a right to prevent”; 3. “Military power is a means to an end and substantive civil rights are ends in themselves.” Thus, granting authority to government to cope with crises may be done “without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.” Thus, the questioned proclamation, insofar as it violates these basic principles for protection of human rights, are declared “unconstitutional,” which may as well be “illegitimate,” in Habermasian context, or a nullity in Rawlsian’s for non-observance of the First Principle of justice in the process of discourse. Executive Order 464 Cases The case of Senate of the Philippines v. Ermita73 and companion cases74 bring to the fore the constitutionality of Executive Order No. 464 requiring the prior consent of the President of the Philippines before any official75 of the Executive Department and officers of the Armed Forces and the Philippine National Police may be summoned to appear before either House of Congress. Several petitions had been filed before the Supreme Court questioning the constitutionality of the said order, foremost among which is the petition by the Senate of the Philippines, being directly affected by such Order in the exercise of its power of inquiry. In substance, this case is between the Senate of the Philippines and its power of legislative inquiry and the Executive Department and its claimed executive privilege allegedly dictated by the principle of separation of powers. The Supreme Court declared void the provisions of the Executive Order requiring prior consent of the President for appearance to either House of Congress by reason of generality resulting from its failure to make “precise and certain” reasons for any claim of executive privilege. Moreover, the Executive Order failed to distinguish between appearance during question hour, which may be legally prevented by the President and appearance during inquiries in aid of legislation, which may only be prevented on matters covered by executive privilege clearly stated in the refusal to appear. Such generality, the Supreme Court said, “severely frustrates the power of inquiry of Congress” and in effect “deprives the people of information which, being presumed 73 G.R. No. 169777, April 20, 2006 74 Bayan Muna v. Ermita, G.R. No. 169659; Chavez v. Ermita, G.R. No. 169660; Alternative Law Groups, Inc. v. Ermita, G.R. No. 169667; PDP-Laban v. Executive Secretary, G.R. No. 169834; and Cadiz v. Executive Secretary, G.R. No. 171246 52 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair to be in aid of legislation, is a matter of public concern.” This last pronouncement by the Court, without perhaps realizing it, is a declaration that to uphold the validity of the Executive Order and therefore, the arbitrary power of the President to withhold information, is to deny application of Rawls’s Principle of Reflective Equilibrium in the process of rational discourse. Clearly, what we have here is the Supreme Court stating a failure of legitimation since the people who stand to be affected by any legislation are effectively deprived of participation in the discourse, without which a norm of legitimacy “cannot bear fruit,” an outright denial of the process of determining judgments by shifting concerns “duly pruned and adjusted.”76 Estrada v. Escritor: Illustrative of “Shifting Judgment” On the role of morality as a factor in judicial discourse, the case of Estrada v. Escritor 77 illustrates an apparent conflict between the morality and legality of a woman cohabiting with another person during the lifetime of her estranged husband. The case is interesting reading on how the Supreme Court factored in and justified such cohabitation in the face of the textual clarity of the law. For cohabiting with a man other than her husband despite her separation de facto from her husband for more than two decades, Soledad Escritor, a court interpreter in the Regional Trial Court of Las Piñas City, Branch 253, was administratively charged for “disgraceful and immoral conduct.” Escritor, however, is a member of Jehovah’s Witnesses, and within the congregation, such cohabitation is allowed by the elders of her religion by her execution of The Declaration of Pledging of Faithfulness. In his Report and Recommendation on the case, investigating judge Maceda pointed out that “the more relevant question is whether or not to exact from respondent Escritor, a member of ‘Jehovah’s Witnesses’ the strict moral standards of the Catholic faith in determining her administrative responsibilities in the case.” Maintaining that “religious freedom being a fundamental right which is entitled to the highest priority and the amplest protection among human rights, involving as it is the relationship of man to his Creator,” Judge Maceda recommended the dismissal of the complaint against Escritor. The Office of the Court Administrator (OCA), however, while concurring with Judge Maceda’s factual findings departed from his recommendation to exonerate Escritor, stressing that Escritor had become 75 Head of departments and senior officials in the judgment of the department head, generals and flag officers, PNP officials with the rank of chief superintendent, senior national security officials, and such other officers as may be determined by the President (Executive Order No. 464 dated 28 September 2005, Section 2 [b]) 76 Rawls at 20. 77 A.M. No. P-02-1651, August 4, 2003 and June 22, 2005 VOLUME 34 NUMBER 2 (OCTOBER 2009) 53 Oscar G. R aro capacitated to marry after the death of her husband, but she “voluntarily carried on” her questioned relationship, which by itself constitutes “immorality.” Thus, the OCA recommended a suspension of six months and one day without pay against Escritor. The Supreme Court, at the first instance that the case was heard on 4 August 2003, and after establishing the parameters for decision later, remanded the case to the Office of the Court Administrator to “examine the sincerity and centrality of respondent’s claimed religious belief and practice; to present evidence on the state’s compelling interest to override respondent’s religious belief and practice; and to show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s religious freedom.” After completion by the OCA of its re-investigation along the lines suggested, the Supreme Court on 22 June 2006 finally decided the case dismissing the complaint against Escritor. The rational parameters by which the individual justices dissented and concurred in the case at the first instance on 4 August 2003 illustrates rational discourse at work, guided not only by what the law commands, but also by what conscience insists. Among the justices, the ponente, Mr. Justice Puno, was clear that the case may be resolved on the basis of the standards of religious freedom vis-à-vis the State’s compelling interests to override it. But for purposes of this discussion, it was Justice Vitug’s concurring opinion which captured the context of Rawls’s First Principle of Justice in his exposition of law as it clashes with morals: “Law and morals, albeit closely connected, may proceed along different planes. Law is primarily directed at man’s behavior while morals are directed at his animus or state of mind. While the law often makes reference to one’s state of mind, it does not, however, punish the existence of immoral intent without more. It requires only that at the risk of punitive sanctions for disobedience, one must refrain from the temptation to act in accordance with such intent to the detriment of another. The ethical principle is generally cast, affirmatively or negatively, in the form of a direct command, whereas the legal rule speaks, generally, of the consequences that attend the violation of a duty. As to purpose, law and morals further diverge. Morals strive for individual perfection, while law aim at harmony in the community. “Not all societal mores are codified into laws. We have yet to see a law outlawing vanity, pride, gluttony or sloth. Nor are all laws necessarily moral. Slavery is outlawed but not so in our distant past. Laws allowing racial segregation prejudicial to blacks or denying the right to suffrage to women may seem to be relics of a long gone uncivilized society if one forgets that the abolition of these “immoral laws” is but less than a century ago.” ... . . . . . . “It might then be deduced that moral laws are justified when they (1) seek to preserve the moral value upheld by society and (2) when the 54 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair morality enforced in a certain case, is true and correct. It is within these standards that the provision against “immorality” in the Administrative Code must be examined to the extent that such standards can apply to the facts and circumstances in the instant case before the Court. As a rule then, moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted, would a departure be justified.” (Italics ours) However, the ponencia of Justice Puno which calls for a balancing test between the State’s “compelling interest” and the respondent’s right to religious freedom, is really an attempt at complementation of morals and the law. Citing the germinal case of Sherbert v. Verner,78 he said that “not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.” What we have here, is therefore, a recognition that the law cannot be left alone, but must be read in conjunction with morals. While the formulation seems easy as it sounds, the application is, however, what justifies the lengthy disquisition in Estrada v. Escritor. For that, Justice Puno’s scholarly treatment of the issues is actually Rawls’s recommended process of “pruning and adjusting” in the hope that the factors would balance in “reflective equilibrium.” VIII Conclusion: Fairness in the Justness of Democratic Institutions Under the principles of justice drawn by Rawls, one perceives the environment of his existence as “favorable and just” in the pursuit of his “life-plan” when equality in political liberties is assured. At this stage, Rawls goes back to his theory of the Original Position, when the citizens are not affected by envy and jealousy, such emotions having been “veiled.” Their concern now, satisfied as they are under rules which they perceived as fair, is to pursue their “own plan of life without being dismayed by the greater amenities and enjoyments of others.”79 While the individual may not be totally insouciant to rank, he is assured that his “need for status is met by the public recognition of just institutions, together with the full and diverse internal life of the many free communities of interests that equal liberty allows.”80 In short, the basis for self-esteem is not economic share but the publicly shared and affirmed distribution of fundamental rights and liberties protected by institutions justly established. 78 374 U.S. 398 (1963) 79 Rawls at 544. 80 Id. VOLUME 34 NUMBER 2 (OCTOBER 2009) 55 Oscar G. R aro What Rawls tells us in the end is that his theory of justice merely provides the favorable environment under which man may pursue his dreams, where “the loss of freedom for some is not made right by a greater welfare enjoyed by others.”81 Thus, as against the utilitarian tendencies of sacrificing the minority for the comfort of the greater number, Rawls provided the alternative theory, a “viable systematic doctrine [where] the idea of maximizing the good does not hold sway by default:”82 It is in this assurance of equality in political liberties that Rawls’s theory of justice as fairness is firmly rooted. In this jurisdiction and in others, one of these institutions “justly established” is the judiciary which must always be relied upon as the bulwark of the citizen’s individual liberties against the power of the state. After all, only the state has the wherewithal to endanger these liberties in more meaningful and substantial ways. The judiciary’s role as a “just institution” assumes extreme importance in this continuing pursuit for justice where, in the process, political rights are continuously subjected to the unrelenting onslaught of ever-shifting interests and changing predilections of the sovereign. But our system is in place. The Bill of Rights assures equality and protection for all. And even while the threats to these rights have historically brought the upheavals of EDSA, and the sporadic revolts and revolutions before that which ultimately ran out of steam on euphoric expectations for change, we remain steadfast and zealous of these rights even while the realities thereafter have fallen short of the promise. But the judiciary must be equally steadfast and zealous even when the shouts of protest have died down. In the solemn task of being the guardian of the balance, the judiciary must always be relied upon even when the people have grown tired and fatigued of open dissent by warm bodies and shrill voices and colorful slogans. In this sober task, it must not only be impartial but “veiled” from biases and self-interestedness, naked in the face of its Maker, and guided merely by rationality and conscience. Then and only then may Hamilton’s memorable phrase be taken in a different, but nobler context: the judiciary is, indeed, “the least dangerous branch” from whom the people have the slightest cause for fear of peril of their civil liberties. Perhaps, then, we can imagine John Rawls smile. 81 Rawls at 586. 82 Rawls at 586. 56 IBP JOURNAL Rawls’s Theory of Justice and its Relevance in A djudication: Nakedness in the Pursuit of What is Fair Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism Florin Ternal Hilbay* On December 10, 2008, the world commemorated the 60th anniversary of the adoption of the Universal Declaration of Human Rights. In most parts of the globe, state officials made declarations and resolutions, educational institutions and their academics held conferences and forums, non-government organizations and human rights institutions issued celebratory statements and renewed calls for advocacy. In the light of the parallel reality that many of today’s sovereign states—and we still call them that—and non-state actors have embraced the idea of particularism at the level of rhetorical and political commitment, the wide acclaim that the Universal Declaration and its ideology of human rights have received is nothing less than a phenomenal success in the marketing of ideas. The notion of human rights and the movement it has spawned are now deeply embedded in global consciousness, directing the way we view the world as individuals immersed in legal relationships with other individuals and, most importantly, the state. How our normative world came to arrive at this temporary configuration is a story that is at once complicated and complex, highly political and remarkably subjective. Nonetheless, the attempt at narration must be made so that we may be able to ground the abstract ideas of law to the concrete events of history; for while it is possible to regard law itself as a separate theoretical system, we must nevertheless remember that it is an institution shaped by the daily lives of its participants played out in the theater of humanity. My aim in this Essay is to highlight some narrative threads of the emergence of human rights consciousness as we perceive it today, and in the way it is communicated by its adherents through the alluring descriptive: everyone, everywhere, always. The subject of this interrogation has little to do with questions related to the characteristics of human rights discourse as a set of legal artifacts or with questions of what and when; instead, it has to do with articulating the background conditions that made it convenient, if not necessary and inevitable, to deploy the language of rights in various philosophical, cultural, and political conversations of the inhabitants * Melquiades Gamboa Professor of Jurisprudence, University of the Philippines, College of Law. A.B. (University of Santo Tomas), Ll.B (Univ. of the Philippines), Ll.M (Yale Law School). This essay is based on a lecture, entitled “Rights” delivered at the University of the Philippines, Law Center on 10 December 2008. This Essay forms the first part of a series of pieces the aim of which is to historicize human rights discourse in the Philippines. VOLUME 34 NUMBER 2 (OCTOBER 2009) 57 Florin Ter nal Hilbay of an era. In particular, I am interested in the rise of the associated ideas of autonomy, liberty, and individuality as basic concepts animating the notion of human dignity which forms the core of human rights thinking today. Because we live in a global society already caught up in the discourse of human rights, with all the implications such a paradigm for democratic social organization carries, it is important that we take a few steps back every now and then to reflect on the foundations of the linguistic platform on which we stand even if only to heighten our sense of location in the history of ideas and thereby tap into the material processes by which we have been constituted. This narrative I speak of can be situated technologically in the 15th century with the development of Gutenberg’s movable-type printer, and finds its political culmination in the 18th century, in the period generally known as The Enlightenment. Of course, the identification of The Enlightenment as a crucial period in the conceptualization of human rights is, by itself, not new. After all there is, according to Amnesty International’s secretary general Irene Khan, a strong strand of thought in the academy that points to that era as the source of the modern world’s philosophical and political commitment to human rights.1 Nonetheless, this resort to a preceding period as a source of succeeding ideologies, as human rights has been so labeled, has in my view remained at a rather a high level of abstraction we might as well consider such referencing a form of finger-pointing. In any case, the point is not that such an ascription to the enlightenment era is unsupportable in the light of the way history has so far been written, but that it seems such a shotgun approach to attribution. There is a need to try to identify with some level of concreteness the events during a particular period that led to which and what consciousness-forming events. With special note on the fact that the 18th century was such an intellectually potent era, how one brings to bear the power to interpret the facts of history affects the saliency of certain strands of thought over others. As I shall explain below, the rhetoric of human freedom of the enlightenment thinkers in Europe can be seen as a byproduct of the technological transformation in the production of knowledge that was initiated in the 15th century. To this extent, this Essay is an attempt to reach a lower level of generality in the identification of the material conditions that led to the emergence of human rights consciousness. And so the questions that I investigate are not “what ideas came out of the 15th to the 18th centuries that have affected us today?”—because the stock answers to this query we already know through our history books—but first, what changes in the production of knowledge came about and/or became settled and therefore, paradigmatic, during this period and, second, how did such changes affect the menu of human activities considered normal, that is, how did technological change produce a transformation in the details of human existence, and third, how did the reconfigured set of human activities become the building blocks for the development of the rhetoric of individualism, liberty, and autonomy? In other words, what were the characteristics of the new epistemic environment which, in turn, required the 1 58 Irene Khan, Knowledge, Human Rights, & Change, 28(2) Harvard International Review (2006). IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism articulation of a reconfigured sense of self? The answers to these questions, however tentative they may be, provide a more solid rendering of the foundations of the kind of human rights consciousness we have today. They serve to situate the assumptions of the forms of human rights advocacies we generally share within the wider swath of the culture of ideas that connect those who have lived and thought before to those of us today, making possible in our minds a more meaningful historical connection to an identifiable portion of the past and its remarkable inhabitants. This inquisitorial technique, in my view, also serves the powerful function of providing us the analytical tools required to ascertain the stability of the foundations of presentday discourses in the light of our altered forms of existence. As a preview to my discussion of the questions posed above, I identify the transition from manuscript to print culture as seminal events that are partly responsible for the emergence of an environment hospitable to the acceptance of the associated notions of liberty, autonomy, and individualism as a set of rhetorical tools or linguistic arsenal through which human beings saw their relation to one another and the then emerging state system in the west. They are precisely those items of discourse which became the focus of “the theoretical side of [Enlightenment] political philosophy.”2 The printing press, in particular, provided the technological substrate that led to the transformation of the information architecture of the era, thereby affecting the possibilities of knowing and articulating ideas about the world. The print culture had a profound effect on the material conditions of human existence; it made possible the rethinking of the fundamental bases of the relationship of human beings to their society, and provided the very mechanisms for the entrenchment of ideas including, most especially, those that have influenced our views about what it means to be called human including, specifically, those types of entitlements human beings should have in order to live the good life. The structural changes in the epistemic environment of this era are responsible for the emergence of a mass culture receptive to beliefs about and the practices of freedom many people today consider largely incontestible. If it were possible to sum up and describe the cumulative effects of these changes, it is that they effected a decentralization in the capacity for the production of meaning from high levels in the community (state, quasi-state, city-state, religious or linguistic) to the level of the individual. Liberty, autonomy, and individuality, as ideas informing human rights practice are, therefore, simply the bundle of psychological entitlements that serve to maintain the effects of such structural reconstruction of society leading to this decentralization. They are the linguistic and conceptual mechanisms which serve to preserve the results of the transformation western society underwent from the 15th to the 18th century, and whose effects we still feel today not necessarily because of the logical appeal of the ideas of this era but because of the quality of the technological changes in knowledge production during that period compared with the others that have allowed the discourse in such 2 Lester G. Crocker, Interpreting the Enlightenment: A Political Approach, 46 (2) Journal Of The History Of Ideas 211 (1985), at 214. VOLUME 34 NUMBER 2 (OCTOBER 2009) 59 Florin Ter nal Hilbay ideas to attain the level of the canonical and the basis of the application of the techniques of doctrine. By way of qualification, the claim that I make here is not that the philosophical idea of individual rights inhering in human beings is a uniquely western project for many have, in fact, indicated that the notion of inherent human dignity is a widely shared cultural convention among Asian societies. Instead, it is that the particular form—human rights qua rights—by which we now carry the project of promoting the dignity of the human body is a product of a set of material events that occurred in the west and which has made such form the convenient and dominant metaphor for organizing our normative universe. At least for my present exposition, the claim that the human rights project is a hegemonic tool by which a supposedly monolithic western society seeks and is able to maintain epistemic control over the affairs of “the others,” i.e., Asia and Africa, is largely irrelevant except for the recognition that our modern-day conception of human rights is traceable to a specific, though not exclusive, narrative that played out in the west. This acknowledgment, it should be noted, is important primarily for the view that this specific instantiation of human rights is a product of a set of historically contingent events. Knowledge in Print. In his seminal work, Benedict Anderson provides a powerful materialist account of the rise of nationalism.3 In the opening chapters of the work, he notes that the appearance of the novel and the newspaper, the great innovations of the 19th century, as partly responsible for the emergence of a linguistic community which allowed temporally separated inhabitants to imagine themselves as being bound together by their ability, as it were, to focus their consciousness on a specific narrative in an “overwhelmingly visual and aural” sense. The ingenuity of this account is in the plain artificiality of the idea of a nation—the notion that the unity of a large conglomeration of human beings was deemed not a matter of nature, or tribal affiliation or, even more crudely, of blood, but that it depended on how cultural artifacts in print were instrumental in acting as a medium for the unification of a vision of nation-ness. Such ingenuity, however, can be extended and flipped to produce a different, if not contradictory, conclusion. By this I mean that while knowledge in print was capable of creating a vision of community simultaneously constituted, it was likewise capable of bringing about, as it did from the 15th to the 18th centuries, a heightened and well-articulated sense of individualism, of separation of the self from the community to which it belongs. The seeming paradox in this insight can be explained by the fact that changes in material conditions of existence are opportunities for the manufacturing of competing rhetorical tools. Thus, if the novel and the newspaper were capable of producing a heightened apprehension of togetherness, the same materials simultaneously allowed individuals to mark themselves off from their communities as beings who differed in detail with others and whose thoughts were accessible to others only through vicarious experience. 3 60 Imagined Communities (Verso, 1983). IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism It is no contradiction to hold that knowledge in print had the dual effect of allowing human beings, looking outwards, to sense themselves as being united by war, culture, language, myth, etc. and, looking inwards, to reflect on the deeply personal and subjective nature of each and every experience. It is this fascinating simultaneity of effects constitutive of the bipolar themes of community and individuality that characterizes the rise of nationhood and rights-invested citizenship as cultural and legal constructs. And while speculations on the material roots of nationhood are already both broad and deep, those on individualism have remained at the level of the purely philosophical and political, abstract and largely ungrounded. But, as the reader may have already foreseen, if a materialist account of nationhood is possible, so is a similar account of individualism considering the similarity in the foundations of these twin concepts. So far as the effect of knowledge in print is related to individualism, one must not forget that the reader’s engagement with the printed material is a distinctly solitary affair. In libraries, cafes, dining tables, bedrooms, benches, and carriages, the reader is, first and foremost, an individual accessing knowledge as a being in isolation. Her act of reading may of course be, as Anderson implies, the way by which she is able to imagine herself along with other readers as part of a collective; nonetheless, the activity of reading is a peculiar moment of separation of one’s consciousness from the outside world; it is itself an assertion of the privacy of the mind so crucial to our notion of autonomy. By engaging the printed matter, she detaches herself one step away from the common activity of living in the world in which she is always immersed; she inhabits the life-world, but with the print as an intermediary. One may be tempted to see this personal relationship with the text as metaphorical, but for the reader grappling with the universe of text, this relationship is as real as it can possibly get. The epistemic environment in which we exist today allow, if not require, us to discount the import of printed knowledge as it relates to our notion of self. Just like the air we breathe, print’s pervasiveness makes it invisible and its significance to culture easily under-appreciated. But imagine a world in which information is encoded in handwritten manuscripts instead of printed paper and one sees immediately the stark differences in the way in which knowledge is produced, how it is accessed, who holds the power of knowing, and for what purposes information may be controlled. The information infrastructure of western society prior to Gutenberg’s invention was precisely such world. One may almost immediately anticipate the conclusion that the world of manuscripts and the world of print were worlds inhabited by human beings bearing different conceptions of self—bodies from (largely) the same genetic pool, but with markedly different conceptions of time and space, as I shall later on explain. Groping for a fashionable analogy, we could very well think of how today’s information revolution has allowed us to divide people between those who live analog, and others, digital, lives. Those sensitive to the effects of digital encoding in human life can easily compare how human beings of the early 20th century were differently constituted from those who live in the 21st or how the particulars of human existence, when carefully scrutinized, show markedly different platforms for producing and interpreting meaning. VOLUME 34 NUMBER 2 (OCTOBER 2009) 61 Florin Ter nal Hilbay The common ground between the digital revolution we experience today and the switch from manuscript to print during the 15th to the 16th century is that both transitions fundamentally altered, to borrow Unger’s famous title, “knowledge and politics”: information production, know-how, access, and therefore, political consciousness. Human beings remained the kind of genetic pieces evolution has produced, but with a radically different sense of how they relate to both themselves and the world outside of them because the new information infrastructure created possibilities for creation of meaning and production of knowledge in ways that were not previously possible; in other words, the emergence of new regimes of information necessarily produce human beings with an altered sense of humanity, of who they are and what they can be. Because information is the material basis of knowledge crucial to the conception of self and politics, every transformation in information production alters both knowledge and politics. What follows below is a theoretical account of how the transition from manuscript to print economy and culture made conceivable the formulation of stronger variants of selfhood, with a focus on how such transition affected the details of existence of the inhabitants situated within the two information regimes. The Manuscript Culture.4 A central aspect of the knowledge environment during that period Europeans refer to as the middle-ages was the production of manuscripts which, by the method of its production, graphically reflected relations of power in that society. The production of manuscripts was, in the first place, a difficult enterprise that required expertise, time, and material; it was literally a manual artistic product. Anyone who has seen a manuscript can easily appreciate the level of skill deployed for its production. To be sure, a manuscript was not simply parchment with ink on it; nor was meant only to be read—it was, in an age before capitalism and which eschewed materialism, a work of quasi-industrial art. Here were see the merger of two functions—the book as art-object and the book as treasured text5—in the manuscript form which the arrival of the printed book eventually disaggregated. Because they were produced manually, manuscripts took a long period to create. This, coupled with the fact that the materials that can be produced could only be copied from previously produced manuscripts necessarily narrowed the producers of such works to those who had the combined abilities to invest time in their writing and maintain the know-how required to pass on the skill, in addition to the possession of manuscripts for copying. While printing—the mechanical reproduction of books— allowed the multiplication of identical information that made it susceptible to mass production and thus wide dissemination, manuscript production made the reproduction of knowledge simultaneously tedious, expensive, and erratic. The result was a severely restrictive information regime unconducive to the emergence of a reading and writing public sufficiently numerous to create and influence public opinion. One is justified in saying that in such manuscript culture, the transaction costs for the production of and access to information were prohibitive. One may 4 See Christopher de Hamel, A History of Illuminated Manuscripts (Phaidon, 1997). 5 Lisa Jardine, Worldly Goods (1996), at149. 62 IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism likewise conclude that such an environment could not possibly be considered optimal for the growth of a mass-based market for information encoded in texts. Needless to state, such manuscript-centered information ecology mirrored the hierarchy and the narrow-minded focus for which feudal life is known. At least during the monastic age, the production of manuscripts can hardly be considered an industry for profit, its main function being the dissemination of religious information in the form of the service book, the breviaries, the book of hours, the psalter, the lectionary, and the missals. The universities, which were just beginning to exert their influence in the world of popular knowledge, were not only minimal in number but also had close ties to the hegemon of the era—the Church—which not only policed the dissemination of information through their presence in the universities but also had possession of many existing manuscripts. In any case, educational institutions of the time were limited to the aristocracy, itself a miniscule portion of the population, and remained closed to the overwhelming majority. This situation effectively reduced the university’s role in the creation of a truly mass-based market for information production and consumption. It is also worth pointing out that minus the engine of capitalism, wide dissemination of information that was already expensive and timeconsuming to produce in the first place would have been very difficult to achieve. Necessarily, this non-profit orientation in the production of knowledge had an important effect on first, the power of the possessors and copyists of information to regulate and maintain knowledge available to their intended audiences; second, the role of the writers, whether their interest was in the arts, religion, politics, or philosophy; and third, the quantity and quality of the members of the reading public. Prior to the rise of the print industry, the monasteries and the abbeys were the centers of knowledge production and the workers in this enterprise, the monks, were required to spend significant portions of their time specializing in the manufacture of manuscripts. This is a fact full of implications. That the producers and re-producers of information were members of the religious had a significant impact on the knowledge available to the inhabitants of the era: first, it ensured that the materials available for consumption during the day had a content-bias, one that leaned towards religious dogma or, at the very least, was not critical of the dominant institutional practices of the time; second, the epistemic bias in the production and reproduction of information provided no safe haven for information on opposing worldviews, that is, the information infrastructure provided no other popular avenue for the production of critical opinions; third, that monks were responsible for the physical act of producing manuscripts effectively made them both censors and vessels for the propagation of knowledge—the scholar-scribe comingled the functions of commentator, glossators, and reproducer of knowledge6; and fourth, the very physical 6 See Perry Wayland Sinks, The Reign of the Manuscript (1917), at 160. “The monastic institution supplied, in a special and adequate manner, through the abbeys and monastic houses in which, so to speak, it was domiciled, a safe asylum and depository for the word of God. The common isolation of these establishments, together with the reputed sanctity of their occupants, were double security against the hand of violence and, therefore, a double means of preservation for the literary treasures—including both the Bible and classic literature—made and treasured therein.” VOLUME 34 NUMBER 2 (OCTOBER 2009) 63 Florin Ter nal Hilbay location of manuscript production—monasteries and abbeys—provided a natural barrier against dissemination of ideas noxious to the propagation of the dominant worldview of feudal Europe. The kind of language in which information was inscribed likewise had an effect on the information ecology. The works considered important during the period, the ones that the clergy and the scholars scoured and pored over, were written in Latin, Greek, and Hebrew, which made the period’s intellectuals trilinguals at the very least. It seems peculiar today, but we must not forget that at the heart of the Reformation was, apart from the debates over doctrine, a war over the primacy of what language religious materials, most especially the Bible, ought to be printed in. The terms of intellectual discourse—of reading, writing, and debating—presuppose a common language communicants can understand. Such being the case, the realities of the period meant that the relevant, and thus powerful, readers and speakers of the day were those who had access to the grammars of the classics, for they understood the code in which information was, as it were, encrypted. But in an era where universities were just starting to be built, where knowledge was produced and reproduced by the religious, where traveling for leisure or knowledge was non-existent, where wealth was hard to come by, where manuscripts were expensive and literally “made to order,” the only ones who had access to classical learning were the nobility, the clergy, and the proto-bourgeoisie. These groups comprised such a small portion of the population from which to constitute a pool that might be considered a reading public or, even less, a learned society. One can barely imagine how highly exclusive this particular knowledge community was. Just as important, at a time when heresy and blasphemy could consign the speaker to a date with the stake, certainly the ability of such a community to freely discuss must have been severely constrained. To couch the situation in the language of information theorists, the architecture of information production of the pre-printing era can be likened to a cathedral, as opposed to a bazaar.7 During this period, the religious and a select few had a monopoly of the pipelines of information and, as a consequence, an almost exclusive franchise on culture and politics. This also meant that the overwhelming majority of the inhabitants were illiterate or, though literate in the vernacular, unlearned in the kinds of information that could deepen their understanding of the world around them. Finally, that they had no access to a large chunk of knowledge available at that time meant they had little opportunity to participate in and substantially influence important cultural movements. The restrictive information ecology of the pre-printing era not only directs us to the centers of knowledge production and allows us to identify the era’s guardians of knowledge; it also permits the opportunity to wonder about what sorts of activities the members of the general population engaged in during the course of their daily existence. More specifically, it allows us to ask: how did such an information environment affect people’s conception of time as it relates to their concept of self 7 64 See Eric S. Raymond, The Cathedral & The Bazaar (O-Reilly, 2001). IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism and, by extension, freedom? One can posit several observations that can assist in the formulation of an answer: first, most learning in mediaeval society was limited to ecclesiastical knowledge coupled with high disincentives against dissemination of critical views; second, in such pre-industrial society, time was spent mostly towards meeting the practical demands of existence, that is, the business of life was directed to the task of subsistence; third, in the absence of a knowledge culture with diffuse bases, it would certainly have been difficult to conceive of a mass or popular culture which can be the basis for learning and reflecting about how people live their lives. These characteristics reinforce one another, constructing inhabitants of the era with a conception of both time and space that is at once parochial and un-historical, their daily lives narrowly focused on the raw physical appeal of their natural environments and the received knowledge about their religion. If at all, the sense of communitybeyond-the-village that they derive was the prospect of a party of humanity in the afterlife, either in a promised heaven or a threatened hell. The relationship between the information ecology of a historical period with its inhabitants’ conception of time and space is crucial to the kind of consciousness a generally shared knowledge paradigm requires. So far, what I have tried to show is that the kind of epistemic environment generated by the conditions during the pre-printing era prohibits the emergence of a mass culture of individuals conscious of their autonomy not merely from their physical environment but, more importantly, from the social world that goes beyond the location of the village or the immediacy of a life-span. By autonomy, I refer to that form of idea that would later on be compartmentalized by John Stuart Mill, writing after the enlightenment era, as “the inward domain of consciousness,” “the liberty of tastes and pursuits,” and the “liberty of combination among individuals.”8 Put differently, the kinds of freedoms that have become so canonical to the project of modernity were inconceivable in a time and place whose information network centered on abbeys and monasteries and whose information was written, not printed. In the next sub-section I detail how the transition to a print economy effected various material changes that made libertarian ideas rhetorically appealing to a significant number of inhabitants of the printing era. The Print Economy. A profound transformation in the production, dissemination, and standardization of information from the 15th to the 18th century occurred, which was made possible by the introduction of paper in Europe from China via the Arabs three centuries earlier. This change not only reduced the number of working hours needed to produce a book, but dramatically increased the intellectual output in books, altering forever the reader’s relationship with what was no longer an exclusive and unique object crafted by the hands of a scribe: the change was, of course, printing9— an epoch-making event that altered the way things change and the way they stayed the same, affecting all forms of survival and revival.10 As is usual with the adoption 8 ON LIBERTY (1869). 9 Alberto Manguel, A History of Reading (1996), at 133. 10 Elizabeth Eisenstein, The Advent of Printing and the Problem of the Renaissance, 45 Past and Present 19 (1969). VOLUME 34 NUMBER 2 (OCTOBER 2009) 65 Florin Ter nal Hilbay of a new technology, with printing, the reproduction of existing and new works became cheaper and more efficient. With the rise of the printing industry came crucial changes in the information ecology aside from simply the possibility of reproducing more materials with better technology. That the printers were profitseekers who traveled different cities to market their technology was important insofar as the incentives provided by the market reduced the hold of the church on printing. One can safely say that the profit incentive was responsible for disentangling, at least to the degree sufficient to diversify content, the role of the publisher and that of the propagandist, religious or otherwise. The censor-monks became simply participants in a large market in which they suffered the supreme disadvantage of not being driven by the desire to make as much money as possible from the publications they wished to distribute. Whereas previously, the core mechanism for the dissemination of information was the religious motives of the scribes, with printing that core mechanism became less religious and, to a certain degree, less contentbased. Religious printers had a natural incentive to produce works related to the propagation of their faith, which incentive the ordinary printers did not share. Instead, the latter’s incentive was the existence of a demand, real or apparent, for any species of information which they can publish to make a profit. In the period of transition from manuscript to print the relationships between authors, manufacturers, buyers and backers were shaped by those kinds of accidental opportunities which characterize any innovation in the commercial sphere.11 To the extent manuscript and print were economic templates on which the production of knowledge relied, the transition was simply a clash between two business models, one that was resolved in favor of the for-profit printers. Such orientation of the printers had the effect of drastically diversifying the kinds of material available in Europe, as the relatively content-neutral basis for the printing of materials opened up space for a wide number of publishable works, including controversial ones. But perhaps, even more important, apart from providing technological capacity for materials that could not be published during the pre-printing era (either because the scribes did not want them published or because it was not practical to spend the skills of the copyists on such materials), the print economy’s drive to maximize its own potentials spurred the desire to create new materials. Thus, once the popular materials during the manuscript era were printed to the satisfaction of the market and the profits out of such conversion from parchment to paper became marginal, the impetus to print other materials created a market for new content. This is the foreseeable effect of the transition from one technology to another—it not only responds to existing demand, but also pushes the creation of new and associated markets, in this case, the market for new content. The inevitable consequence of these changes is the diversification of available information. This diversification, in evolutionary terms, punctuated the equilibrium in the threshold levels—both in terms of quantity and quality—of information available for consumption among the reading public. 11 66 Lisa Jardine, supra note 6, at 142. IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism Along with quantity and quality came the lowering of the price of information. Before, both the cost of manuscript and its acquisition, as well as other associated constraints engendered by the manuscript culture, made its possession a privilege and therefore a source and indicator of status. Privilege connotes exclusivity, and exclusivity is always a source of power. The number of manuscripts available in relation to the size of the population made it rare by today’s standards. But the cheapness of paper and the economies of scale made possible by mechanical printing substantially brought down the price of printed matter, thereby opening access to knowledge in print to a broader public that is less economically endowed and interested in a wider range of information. Just as important, the book did not only become cheaper, it also became available to buyers. Affordability and availability are, of course, two different things: not everything that can be bought is available for sale. But, as was pointed out earlier, it so happened that the bearers of printing technology—the new copyists—were businesspeople, not monks, and their desire for profits was enough incentive to look for ways to create and satisfy demand. Thus, in addition to the lower costs of materials required to produce printed matter, the proliferation of printers who established themselves over most cities in Europe to take a slice in the new market substantially lowered the transaction costs associated with acquiring printed information. No wonder the rise in the number of public and private libraries in Europe closely paralleled “the coming of the book.”12 Both the availability and lower cost of information produced by profit-seeking printers increased the collections of what could well be considered the information oligarchy already existing during the manuscript era. At the same time, the same characteristics of the print economy that allowed the members of such oligarchy to expand their libraries also created space for participation by a larger public: first, some of the popular materials to see print were the grammar books—instructions for the learning of the languages in which the classics were printed. For the first time, the public, which before had no access to the codes in which classical learning was written, came to know the Greeks, the Romans, and the eastern civilizations from which they borrowed so much. This resulted in the expansion of readers versed in pagan culture, in various civilizations that were in many ways more sophisticated, esoteric, and exotic. And, second, the inertia created by increasing the number of printed works made more materials available in the vernacular. Naturally, because many of the members of the emerging reading public were not articulate in Greek or Latin or any of the many languages in Europe except that which they had grown to speak, they demanded the translation of materials written in those other languages into their vernacular. This was revolutionary indeed, if only because, whereas before, access to information in manuscripts was part of the many privileges shared between the nobility and the clergy, with printing, such access became less of a privilege. This privilege, of course, was cultural in character and, once widely shared, became a social expectation. It is not difficult to see, however, that once such expectation became a powerful source of diverse meaning to a significant number 12 Lucien Febvre & Henri Jean-Martin, The Coming Of The Book: The Impact of Printing 1450-1800 (1997, Verso). VOLUME 34 NUMBER 2 (OCTOBER 2009) 67 Florin Ter nal Hilbay of inhabitants who were starting to see themselves more and more as citizens, as opposed to mere subjects, it became possible to conceive the notion of access to information in the form of a general right to have those conditions that make information available the obligation of the state to protect. This materialist narrative of the commercialization of information through the invention of printing now brings us to its effects on human beings and on how such transformation left them susceptible to a reconceptualization of what it means to be human and how, having conceived themselves differently, they came to develop a rhetoric designed to protect such revised understanding of self. So far, what I have described are the structural effects of the transition from manuscript to print that focused on an analysis of the macro effects of the new technology. These large-scale effects both constituted the new terrain in which information was produced in society as well as the situation in which individuals of the era eventually found themselves. The novelty brought by printing—efficiency, lower cost, mass distribution—contoured individuals’ habits of reading and writing, and ultimately, thinking and communicating. New Sense of Self. The confluence of these printing-associated modifications in the production of knowledge allows us to now theorize how such new information environment became a catalyst for a reconfigured sense of self. For one, it is easy to see that printing abetted the popularization of such deeply personal human activities as reading and writing, forms of meaning-making that are intrinsically individualistic; for another, it made possible the emergence of a reading public with a wider base and diverse interests. Just as important, it allowed people to revise their thoughts about such fundamental questions as the relationship between matter and spirit, science and mysticism,13 and the nature of the divine.14 This new situatedness brought a new form of individuality in several ways— i. Space.—Widespread access to printed works allowed human beings a different psychological template for looking at space. The eyes, after all, are limited but flexible viewing devices. Because evolution is responsive—it solves problems that lay to hand—and not pre-emptive—it doesn’t equip us with all-purpose tools—it is easy to imagine why human beings do not have the type of vision that crosses mountains and seas. But the novelty of the printed matter is its ability to provide the masses the means by which to breach the constraints of the physical environment through vicarious viewing—of someone or some others, of an event, of another person’s home, of another village or city, of someone’s thoughts and feelings, or of something wholly unconnected with even the physical world. And the beauty of this novelty is that this vicariousness is coupled with anonymity—it allows the reader to go “online” on this kind of vision space without the inconvenience of recognition. 13 For a fascinating account during Enlightenment-era France of “the growing public interest in scientific matters and the appropriation of natural philosophy into popular culture” in the debate over the scientific status of dowsing, See Michael R. Lynn, Divining the Enlightenment: Public Opinion & Popular Science in Old Regime France, 92 (1) Isis 34 (2001). 14 See Cyril B. O’Keefe, Conservative Opinion on the Spread of Deism in France, 1730-1750, 33 (4) The Journal of Modern History 398 (1961). 68 IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism Imagine the reader, fully immersed in the pleasures of the moment, her mind traveling, yet supremely sovereign, inaccessible, and private. This, no doubt, is an experience full of meaning especially to those who had had the opportunity to witness the transition from manuscript to print and therefore endowed with the means with which to compare the intellectual pleasures of one against the other. The explosion of reading materials was, for all intents, the illumination of areas previously darkened by the sheer lack of opportunities for seeing-by-reading. With print, human beings acquired a vision space that brought them to a detailed past and an infinitely complicated present, thereby enhancing the quality of how they experience their own lives. ii. Time.—The printed work also allowed the reader to transcend time. Without it, her connection with the past was severely restricted to oral history and other forms of impression. Of course, the manuscript permitted readers the same access as the printed work; but the salient feature of print was its pervasiveness which permitted a much wider public to scrutinize the details of the lives and ideas of others that have lived and thought, and savor the intellectual products of those still alive. Whereas time for those who existed before the print economy was lived in terms of the daily motions of the sun around the earth—or so they thought until they read Galileo’s Dialogue Concerning the Two Chief World Systems—the printed work gave sizeable members of the population the ability to move their consciousness, at the level of the individual, forwards and backwards. This not only gave them greater control over time by increasing the span of history they were able to play with, it also, and perhaps even more importantly, heightened their sense of difference. The civilizations of the Greeks, the Romans, Africa and Asia not only came to light with the arresting presence of the foreign, but also unsettled the tyranny of the present, that mental timeframe that have held captive the minds of those who have not or do not read. Among the many consequences one could speculate, one of those that stand out would be the greater focus on the importance of the moment, singled out in a larger canvass of history. We see the reading public of anonymous individuals— a collective of consciousness connected only by their engagement with text—traveling in time but always ending their journey with a return to the present, now cast in bold relief as the arena of concrete experience. iii. Authorship.—Michel Foucault famously declared: [t]he coming into being of the notion of an “author” constitutes the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy, and the sciences.15 The creation of the author as a new niche for legal entitlements in the form of intellectual property constituted an aspect of a special kind of human being—the writing subject— into a separate compartment of legal and cultural discourse. And so the writer, once a creative being who sought meaning by expressing and who sometimes published for fun, posterity, or money, became an author—a legal artifact separable from the writer, even capable of surviving her death, and protected by state. The author is a creature of the market whose history may be found in the development of the laws 15 “What is an Author?” in The Foucault Reader (1984), at 32. VOLUME 34 NUMBER 2 (OCTOBER 2009) 69 Florin Ter nal Hilbay of copyright. This development, in turn, is intimately intertwined with the print economy and the controversies it brought about. As I have previously noted, the search for profits out of printing expanded the market for creators of content, especially when materials encoded in manuscript had already been printed to the satisfaction of the public. Prior to the emergence of the printing industry, authors who sought to live by their creativity survived through the system of patronage by which we now know the Medicis. But the patronage system, just like any other form of relation, had its advantages and disadvantages. Understandably, patrons had an interest in the status quo or had economic and political interests they sought to protect, and these considerations affected both the expression of the author and the marketability of his ideas. The reading public’s demand for content was responsible for the disentanglement of this relationship between author and patron, as the former started seeking wherewithal for the sale of his work from the printer who gambled on the profitability of the new work. This was not a natural and easily development; if anything, it was controversial and the debates over copyright involved the monarch, conflicting ideologies, and of course, god. 1720s France is a good example. Employing the doctrine of divine revelation and a long tradition of medieval thought, the king’s ministers argued that ideas were a gift from god, revealed through the writer.16 Authors were not allowed to publish their manuscripts, and only members of the royal guild of publishers and printers were permitted to engage in the printed publication of what was royally deemed to be god’s knowledge.17 Eventually, authors, instead of simply selling their works to printers by a contract of sale, devised and fought for laws that gave them greater control—privilèges d’auteur—over the works beyond the old terms of sale. This form of enhanced protection we now call copyright. These related events marked a seminal moment in the freedom of the mind: first, that authoring became profitable meant that intellectual creation, one of the most powerful and distinctive forms of assertion of one’s individuality, was now a source livelihood for many—an industry by itself, a novel, if profitable, category of meaningful existence—and another niche not only for the literate and the emerging bourgeoisie, but also the poor and angry, hungry and expressive; second, that the author became less bound to the wishes of the patron meant greater freedom in the selection and expression of content, thus providing an avenue for social criticism and public propaganda; third, that authoring at a wider scale was now possible meant that speakers who distinguished themselves as such became the new high priests of the print economy, powerful speakers and models in an era of anonymity; fourth, that the printer’s compass was the market meant that even expressions critical or hostile to the settled ways of society found print so long as there were buyers and the dangers to the printer (and other costs) were reasonable risks compared to potential returns. 16 Carla Hesse, Enlightenment Epistemology and the Laws of Authorship in Revolutionary france, 1777-1793, 30 Representations 109 (1990), at 111. 17 Id. 70 IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism These developments helped initiate the critique of the permission regime in the publication of information, helping relegate the enterprise of writing and printing more and more to the category of the private. For those familiar with constitutional law, what immediately comes to mind are the rhetorical weapons used by advocates against the “no permit, no publication” policy of monarchs and parliaments—free speech and freedom of the press—the very rights we consider so fundamental today to the operation of the liberal state. Unpacking the details of the changes brought about by the emergence of the printing industry, what used to be considered an “unacknowledged revolution,”18 is a work requiring an analysis of a technological innovation’s relation to a revolution in the production of knowledge, a task historians since the second half of the century have been performing. In relation to the emergence of the liberal mindset, and to the extent forms of consciousness may be located in material conditions in a particular society, the printing industry is responsible for the emergence of two powerful communities greatly interested in freedoms associated with access to information— the reading public and the community of authors. These communities, at the beginning of the modern era, were the ones best situated to propagate both the freedom to inquire and to articulate; and printing—through the book, the leaflet, the newspaper— provided their craving to learn and to speak the technical underpinning through which the desire to know and be known could be satisfied. These communities of readers and authors, armed with a new conception of time and space, became the embodiment of the civilized person: the reading and writing—the educated—human being, what we might call the homo articulus. Compared to the more mundane tasks of herding, fishing, hunting or farming, this new human being’s relationship with the printed matter allowed her access to a more transcendent form of consciousness, a life of the mind, a “higher” form of existence, a new standard of civility. One distinct feature these communities have in common is their mutually reinforcing interest in information, a material of value they came to consider as so fundamental to meaning-making, and therefore crucial to their notion of the good life. The commerce in information, of which reading and writing were integral pieces, brought about new, varied, and highly individuated forms of introspection that generate massive and deep sense of meaning to the members of these communities. The investment in time spent by anyone who enjoys (or even so much as pretend to enjoy) the activity of reading or writing is an empirical attestation of this. Those who live today have access to an even wider stream of content; nonetheless, the reading and writing performed by human beings have remained essentially the same. This fact allows us to comparatively appreciate the fundamentality of access to information as the basic mechanism that makes these activities both useful and enjoyable, and thus a core component of the kind of freedom so central to liberty and autonomy. It also allows us to see why the rights we normally associate with liberty are so important: it is because they serve the function of preserving the benefits obtained by the reading and writing public from the transition from manuscript to 18 Elizabeth Eisenstein, The Printing Press As An Agent of Change (1979). VOLUME 34 NUMBER 2 (OCTOBER 2009) 71 Florin Ter nal Hilbay print. This is the point in characterizing individualism as a general mood that captured the intellectual environment generated by the print economy: before the idea of legally enforceable human rights, whether set up against the state or the monarch, was the set of material events I have just described, leading to a cultural conception of freedom dependent on the effects of technological change. This is why individualism, seen as a mood that influenced the intellectual environment and captured the imagination of readers and writers at the dawn of the print era, has potent explanatory capacity in providing an understanding of the rhetoric of rights. Put differently, what print economy augured was a structural transformation in the production of knowledge whose primary effect was the emergence of individualism as a public expectation, which itself required the political commitment to some notion rights for the maintenance of the very effects of such transformation. Individuality in Community. Transitions from one paradigm to another bring about a reformulation of the paradoxes that govern the new environment. For instance, in the movement from manuscript to print, we see the signs, so pregnant with irony, of an emerging tension between individuality and community. True, the communities that brought to bear the power of printing can be seen as a collective; indeed, it is in printing that the production of knowledge became a truly social activity, one that required the participation of a large portion of the population for the success of the diverse ventures that came with it. For the first time in the history of the world, the knowledge of the ancients, of foreign lands, of the high and mighty, of the dead and gone, and of the fantastic claims of other belief-systems, became largely available to large segments of the population. But beyond mere access, and even as society at the end of the 18th century remained hierarchical, imperial, and oligarchic, the possibility of popular participation in public affairs, at least in the west, started to attain the thresholds of normality. Public opinion quickly became not simply an opinion held by the masses on a speculative level, but a term of art for a collective that found its voice in print—concrete, accessible, diverse, readable, and noisy. At the same time that printing was paving the way for a mass-based reading public engaged in the discourse of common language, such platform for communication was unleashing a wide space for introspection that could only have effected a deepened sense of individualism. One must not forget that only a few activities come close to being as private as reading and writing, even if only because by reading we burn printed matter into our consciousness, transforming it into a lived experience, and by writing we literally give birth to the products of the mind. In either case, these activities are actually instances of powerful attempts by individuals to assume authorship over their lives. In a world of expanded knowledge, the opportunities for the mind to browse, reflect, and otherwise engage in creative mimicry become more intense and diverse, making the mind more capable of engaging in acts of self-definition. This function of self-authorship, which we now take for granted as available to everyone, is fundamental to the liberal mindset. These having been said, we now see the connection between two apparently separate events: the emergence of the print industry and the rise of individualism as 72 IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism a popular mood. What connects these events is what printing has made available to a vast number of inhabitants from the 15th to the 18th century which, one may suppose, was to some extent already available, albeit restrictively, to the knowledge oligarchy of the medieval and renaissance periods. It is printed information at a reasonable cost. This, of course, is not to say that individualism was literally invented during this period or that prior to the printing industry, human beings had no consciousness of their individuality. While we may assume that human beings, as evolved forms of life, have had, since the dawn of humanity, that sense of individuality crucial to allow them to survive (whether they know this or not) by considering their own interests as a default rule of existence, this form of individualism is just pure self-interestedness at the level of the person, unmindful of its social situation. The liberal mindset—or ideology, to make it even more emphatic—is the idea that human beings, though socially constituted, have the right to engage in acts of self-authorship even in the face of a more powerful social authority. This notion is a by-product of culture, not an innate idea. This mindset among individuals became possible only because they became, through the printed text, linguistically connected as members of a discursive community of readers and writers. Thus, the individuality characteristic of 18th century liberal thinking is epiphenomenal to the extent that it is the result of the preliminary existence of a discursive community, necessarily connected through print, but simultaneously increasingly aware of its members’ individuality. It is not the loose notion of freedom to do whatever one desires simply, but a form of situated freedom that recognizes its function both as a means and as an end—it is the means by which other possible freedoms and the freedom of others are equally guaranteed, and the end by which selfhood is intimately expressed. This liberalism accepts, as its basic assumption, the existence of the common enterprise of maintaining a viable market for the exchange of ideas. It is in this spirit that Voltaire famously declares of disagreeable ideas, “I may not agree with what you say, but I shall defend to the death your right to say it.” In this statement one captures the simultaneity of the notions of individuality and community inherent in the concept of freedom that emerged in the print economy; it is the idea that the discourse of freedom, while placing its focus on the individual as the unit of meaning-making, is nonetheless self-conscious of the need maintain the ethic of togetherness in the venture at hand. Voltaire, by promising to defend with his life the right to speak of a person whose idea he disagrees with, fulfills the terms of the tacit contract of the liberal social organization—that the continued functioning of the new information paradigm requires a commitment from the community’s members to protect individual speakers. Individualism as a mood therefore had both self- and other-regarding aspects, which was how the protection of freedom was conceived before the rise of positive law and constitutional doctrine that now places the burden to protect rights more saliently on the shoulders of the government and less on the community of readers and writers. Without constitutional norms that bound the state to guarantee fundamental rights, the community of readers and writers were left to construct a culture of protection of the members of the community with the larger purpose of protecting the community itself. These rules of self-protection, once assimilated VOLUME 34 NUMBER 2 (OCTOBER 2009) 73 Florin Ter nal Hilbay into the ethic of the community, became the rhetorical weapons directed against those who threatened the expectations of freedom of the reading and writing public. The new traffic in information generated by the print economy not only transformed the material conditions of thinking, but also unsettled the configurations of power in society. The new community it engendered, with public opinion as its source of both power and legitimacy, was a natural threat to royalty and theocracy and their tool of enforcement—the emerging state bureaucracy. The diversity of the sources of public information that print made available to the public necessarily made it a potential equal opportunity offender and the status quo was not spared from its articulate voice. This is to be expected. Every movement from one type of social organization to another inevitably results in tension because, as the new one replaces the old, it renders obsolete some aspects of the other or undermines the foundations of its mechanisms. Many invest, financially or ideologically, in the continued functioning of the old regime, and the need to protect such investments leads to inevitable clashes. The transition from manuscript to print was no different. Manuscript, as the fundamental unit on which the medieval social organization relied for the preservation and dissemination of knowledge, did not have the property of tending towards massive distribution, a characteristic the printed matter comparatively had. The kinds of spaces opened up by the print economy made salient the political character of the traffic in information, opening them to contestation, renewal, and temporary closure. To be sure, the old information infrastructure had political effects—its function, deliberate or otherwise, was to allow the present power holders to preserve control over information and many other privileges. The print economy exposed both the restrictive and hierarchical nature of this architecture, and facilitated the drawing of battle lines between the old guards of the ancien regime and their perceived successors. Knowledge in print, therefore, besides simply providing an expedient and less expensive substrate for reading and writing, ushered in a new epistemic environment that allowed individuals to re-conceptualize themselves as individuals and members of society. The fundamental basis of this change was the new relationship between human beings and information, mediated by printing. This resulted in a decentralization which we may describe two-fold as first, the shift from a monopolistic production of knowledge to a more social production of knowledge and, second, the transition from a content-controlled manuscript culture to (at least eventually) a more or less content-neutral print economy. This double-aspect decentralization, we may conclude, were the structural transformations in the information infrastructure that brought about the modern era from whose cultural products we still so heavily depend. 74 IBP JOURNAL Individualism as Mood: Preliminary Thoughts on the Emergence of the Rhetoric of Liberalism Raising Medical Jurisprudence from its Death Bed* Rustico T. De Belen** At the outset, this article aims to provide a scholarly perspective that can help avoid ambiguity in dealing with the discipline that lies in the intersection of medicine and law. This article also underscores that medical jurisprudence can verily delve on the clinical aspects of medicine or medical knowledge as applied, and to be applied, by the courts in cases before them. But it does not lose sight of the fact that medical jurisprudence is basically the study of relevant laws and jurisprudence in relation to the practice of medicine. However, medical jurisprudence is viewed here in its various contexts to fully understand its ramifications and competently discern its signification in the post-modern age. It is regarded in the succeeding discourse as an emerging field of inquiry sanctioned by long usage and its being a required subject in the law curriculum which one must pass before he/she is allowed to take the bar examination. Evidently, the Rules of Court provide that: “No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics” (Sec. 5, Rule 138; underscoring supplied). Medical jurisprudence is defined thus as the study of law and jurisprudence in medical education, medical regulation, and medical practice, including the application and appreciation of forensic evidence and the patient’s rights. * Some portions of this article were lifted from the book Medical Jurisprudence by Rustico T. De Belen, published by C & E Publishing, Inc. early this year. Lest it be misunderstood, this author has no illusion to replicate or surpass what Dr. Solis had achieved, be it in law, medicine or both. In fact, he recognizes his monumental achievements in both medicine and law. In his humble attempt to raise the bar of medical jurisprudence, this author wrote his book on medical jurisprudence to contribute to its literature, correct the misconceptions of people in various aspects of law and medicine combined, and provide a scholarly framework for its study. This book highlights the importance of health and justice in the study of medical jurisprudence. As stated in its preface, it “hopes to serve as a handbook on medical jurisprudence and to help lawyers, judges and doctors formulate or fine-tune their approach to science and technology as applied to the courts.” ** Currently the Deputy Director of the Supreme Court Mandatory Continuing Legal Education Office. He was formerly the Assistant Secretary and OIC-Undersecretary for Policy Planning and Legal Affairs of the Department of Agrarian Reform. He wrote several books on health and law such as Medical Jurisprudence (2009), Dental Jurisprudence (2009), A Praxis in Community Health Nursing (2008), Public Health Care for Community Development (2008), Nursing Law, Jurisprudence and Professional Ethics (2007), and Significant Laws, Rules and Regulations and Standards of Nursing Practice (2007), to mention a few. He is now writing Pharmacy Jurisprudence to complete his book series on health jurisprudence. He also holds the following professional degrees: Bachelor of Arts in Political Science, UP Diliman; Bachelor of Science in Nursing, St. Dominic Savio College; Bachelor of Laws, Arellano Law School; Master in National Security Administration, National Defense College; Master of Laws, San Beda College; and Doctor of Philosophy in Peace and Security Administration, Bicol University Camp Crame Peace Program. VOLUME 34 NUMBER 2 (OCTOBER 2009) 75 Rustico T. De Belen The most prominent guru in Philippine medical jurisprudence, Pedro P. Solis, was a lawyer-physician who was widely respected in the field of law and medicine. He was the most sought-after forensic expert in the country. Regarded by many as the country’s foremost luminary in medico-legal practice, he was a leading educator in the integrated area of medicine and law. In his honor, the UP College of Medicine created the Pedro Solis Professorial Chair in Forensic Pathology. For several decades, his knowledge on medico-legal subjects has been beyond reproach, and his brilliant ideas and expert opinions in various topics of law and medicine combined have been accepted without question. His name has been immortalized in the fields of law and medicine. He is simply unrivaled with his sterling credentials, impressive reputation in the legal and medical professions and magnificent accomplishments as a medicolegal expert. Dr. Solis tackled medical jurisprudence and legal medicine separately in his books Medical Jurisprudence (1988) and Legal Medicine (1987), thus creating unwanted distinction, if not uncertainty, in the emerging medico-legal practice and doctrine in the Philippines. He considered medical jurisprudence as the study of “the aspect of law and legal concepts which has to do with the practice of medicine” (Solis, 1988:1); and legal medicine as the study of “the application of medical knowledge to purposes of law and in the administration of justice,” including “the application of basic clinical, medical and paramedical sciences to elucidate legal matters” (Solis, 1987:1). Apparently from his book Legal Medicine, the concept of forensic medicine is subsumed, if not used to mean or refer to legal medicine, while medical jurisprudence is restricted by the expansive scope of legal or forensic medicine and its self-limiting definition. A cursory reading of both books by Dr. Solis yields to a view that medical jurisprudence relates only to “the legal aspect of medical practice” and forensic or legal medicine is all about “the medical aspect of the practice of law,” thus impetuously dividing the two fields of study instead of uniting and harmonizing them, or better, delineating their respective scopes and boundaries for clarity. Most of the present breed of experts and professors in the area, who frequently lecture in various legal education programs all over the country, and teach the subject in various law and medical schools, have subscribed to this view of Dr. Solis. More often, they have synonymously used or interchanged legal medicine with forensic medicine, or medical jurisprudence with forensic or legal medicine. They have thus approached and even taught medical jurisprudence without accurately defining its nature and scope, and sans any framework for better understanding of the subject. This has retarded the progress of medical jurisprudence to the point of putting it to its present death bed. For this reason, this author was compelled to raise his voice and state that it is medical jurisprudence whether the issue deals with or involves the application of medical knowledge to the practice of law or legal knowledge to the practice of medicine, particularly when it is viewed in the context of justice. 76 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed Solving the Problem of Meaning Almost all authorities in the combined area of law and medicine are physicians first and lawyers second. Dr. Solis, the most popular medico-legal author and expert in the subject, confined the concept of medical jurisprudence to the “aspect of law and legal concepts which has to do with the practice of medicine” (Solis, 1988:1). On the other hand, he defines legal medicine as “the application of basic and clinical, medical and paramedical sciences to elucidate legal matters” (Solis, 1987:1). The foregoing definition of medical jurisprudence has been followed or adopted by Ng, Po and Po (2008) in their book Medical Laws and Jurisprudence as it mainly presents the legal aspects of medical practice. Worse, according to Ng and Po (2007) in their book Forensic Science, “strictly legal medicine should include both forensic medicine and medical jurisprudence” (p.1). They borrowed the definition of the American College of Legal Medicine (ACLM) that legal medicine is “the professional and academic discipline which concerns itself with legal aspects of medical science, medical practice and other health-care delivery problems” (ibid.). Their safe but superficial distinction of the two disciplines is as follows: legal medicine is “a specialized area of medical practice, concerned with the relationship between medicine and the law,” while medical jurisprudence is “a specialized area of legal practice, concerned with the relationship between medicine and the law” (ibid.). Similarly, in his legal education paper entitled Medical (Mal)practice: Laws and Jurisprudence, Capule (2008) defines the three terms as follows: (1) medical jurisprudence as “the application of the principles of law as they relate to the practice of medicine, to the obligations of the practitioner to his patients, and to the relations of physicians to each other and to the society in general” (citing Dorland’s Illustrated Medical Dictionary, p. 873); (2) forensic medicine as “the branch of medicine dealing with the application of medical knowledge to the purposes of law” (Dorland’s, p. 999 ); and (3) legal medicine as a branch of medicine that relates to the practice of law embracing the definition of ACLM (p.6). He argues that medical jurisprudence is an “old nomenclature,” while legal medicine is a “modern terminology” (ibid.). Like the above-mentioned authors, Capule does not characterize medical jurisprudence with clarity and accuracy to distinguish it from forensic or legal medicine. It appears from his definition that medical jurisprudence is narrowed down to the application of law to the practice of medicine and other issues related thereto, thus overlooking the fact that it can be used the other way around – the application of principles of medicine to the practice of law. Moreover, most law and medical schools have included legal medicine and/or forensic medicine as required subject/s in their respective law and medical degree programs, thus adopting Solis’ school of thought. They also conform, whether consciously or unconsciously, to the prevailing notion that medical jurisprudence is “based on the original concept,” and that Section 5, Rule 138 (making medical jurisprudence as one of the subjects required before taking the bar examination) “must be the study of legal medicine as it was the intention and practice of the past” (Solis, 1987: 1). This, to the author’s mind is not in compliance with the Rules of VOLUME 34 NUMBER 2 (OCTOBER 2009) 77 Rustico T. De Belen Court and an anathema to the advancement of medical jurisprudence as an important branch of law. Yes, it is old but not obsolete. Neither does it box its application nor inquiry to the legal aspect of medical practice, as it can be made otherwise. In the study of medical jurisprudence, it may be the practice to use legal or forensic medicine in the past as instigated or perceived by medical practitioners. However, to say that medical jurisprudence is an old name and make legal medicine as a modest substitute for being the modern one is not only giving preference to the latter at the expense of the former but also slaying the former through obsolescence or non-use for being superseded. Court of Appeals Justice Maambong shared his observation on the issue by pointing out in one of his lectures that: Forensic science started with medical practitioners who gave evidence on the probable causes of unnatural death after an autopsy is carried out by a pathologist or medical examiner, and the records were referred to as “medical jurisprudence.” In law school, we studied the subject “Legal Medicine” which does not really appear to an apt description of the course. The foregoing misconception of medical jurisprudence could be attributed first to the policy of the government making legal medicine as one of the subjects in the model law curriculum under DECS Order No. 27, s. 1989, re: Policies and Standards for Legal Education, in spite of the fact that it is categorically prescribed by the Supreme Court. The Commission on Higher Education (CHED) has been holding onto this policy in legal education because of the profound impact of Dr. Solis’ works in the context of health (medicine) and because of the dearth of researches and studies on the subject from the perspective of justice (law). Another reason could be the combined influences of Spanish and American laws to the Philippine legal system. The Spanish regime was known for sowing the seeds of legal education in the Philippines through the establishment of the University of Santo Tomas’ Faculty of Civil Law in 1734, while the American occupation set up the first state law school at the University of the Philippines in 1911. As of 2004, there are already about 104 law schools operating in the country under the supervision of the CHED (CHED Technical Panel Study dated 14 January 2004). Most of these law schools prescribe legal medicine and/or forensic medicine in their law curricula. Note that the CHED is mandated by law to approve the permit to conduct and operate Bachelor of Laws (LLB) or Juris Doctor (JD) curriculum of law schools. In short, the authorities and scholars themselves are the ones confounding the problem of usage and meaning of medical jurisprudence. Some of them acknowledge or consider medical jurisprudence differently from legal or forensic medicine but they use and apply them indistinctly in their books, articles and lectures. Others argue that they are one and the same as the first (medical jurisprudence) is an old concept and the second (legal medicine) is the current one. However, the ambiguity or confusion begins to surface when they operationally define any of them in relation to the other, and worse, when they apply them. Their refuge is often to go back to 78 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed Dr. Solis’ definition, thus, legal medicine as basically the application of medical science to legal problems; and medical jurisprudence as the application of law to medical practice. They usually give the utilization of the DNA technology in the Philippine Court System as a classic example of the first, and the application of the law on torts and damages in medical malpractice cases or health-care liability suits as a common illustration of the second. For this author, medical jurisprudence encompasses both first and second examples as it deals with the application of medical knowledge to the field of law, including the legal aspects of medical practice. Simply put, it is concerned with the use of both legal and medical knowledge in the administration of justice, whether it is legal knowledge in the practice of medicine or medical knowledge in the practice of law and regardless of the actor. Considering that medical jurisprudence is the one categorically required by the Court under Section 5, Rule 138 of the Rules of Court, it must be specifically used and enriched as a mandatory subject in the law degree or curriculum of all law schools, be it public or private, to contribute to its advancement through its usage, debates and discussions inside and outside of the classrooms. Through researches and studies, its scope can be enhanced and elevated to an even wider context and broader perspective to encompass not only the legal aspects in the domain of medicine but also the application of clinical procedures to aid the administration of justice. Medical jurisprudence includes all concerns and questions that bring any medical person in contact with the law, the legal person in contact with medicine or medical knowledge, and the use of medical and legal knowledge combined to promote health and justice. It must stand up as a separate body of knowledge, fight for its autonomy as a discipline, and be recognized on its own merits by advancing its knowledge claims and contributing to national development. It must be used to instill not only the value of justice but also the essence of health to the people. It is how this author views medical jurisprudence in its various contexts to fully understand its implications and competently use and apply them to achieve the end of health and justice. Unveiling Medical Jurisprudence through Etymology The word medical qualifies the operative subject, jurisprudence; thus, joining them together we come up with the term medical jurisprudence, which literally means that medicine is in contact with law or vice versa. To further understand the context and meaning of medical jurisprudence, it is more prudent to start with the origin of terms medicine and jurisprudence. First, medicine comes from the Latin word medicina, which is derived from the Latin term ars medicina, meaning “the medical art” or “the art of healing.” The practitioner of the art of healing in ancient times is called medicus, meaning physician. It was regarded as an art in earliest times because ancient medicine was basically concerned with the use of therapeutic self through human feeling, motivation and compassion to relieve the disease, suffering or ill-condition of the patient. Medicine in ancient times was often practiced by a person with a divine power to heal the body of illness or curse and leadership qualities to rule his people. For example, Imhotep of Ancient Egypt, who was regarded as the world’s first doctor, VOLUME 34 NUMBER 2 (OCTOBER 2009) 79 Rustico T. De Belen was a high priest, physician, chief minister, among other occupations. However, contemporary medicine employs medical technology and clinical expertise, aside from “the face-to-face relief of suffering.” Their integration in the court’s system enhances the body of knowledge of medical jurisprudence and the administration of justice. Second, jurisprudence is derived from the Latin words juris and prudentia, which mean law or legal and knowledge, wisdom or prudence, respectively. Juris refers to “oral legal tradition and to functional applications of law, to and in particular sets of facts and circumstances,” whereas prudentia pertains to one “who behaves prudently or wisely because s/he has knowledge of the possible consequences of a particular action” (De Belen and De Belen, 2007: 25). Broadly, jurisprudence is defined as the theory and philosophy of law which aims to (a) “understand the fundamental nature of law, and to analyze its purpose, structure, and application,” and (b) acquire a deeper meaning of the law, “the kind of power that it exercises, and its role in human societies” (ibid.). It is the study of law and rules of conduct and their utilizations, including the socio-economic and political milieu and factual antecedents surrounding such applications. Generally, jurisprudence connotes not only the established decisions of the Supreme Court, collectively known as the case law or judicial precedent, but also the statutory enactments, rules and regulations related to medical education, medical regulation, medical administration and medical practice. Going beyond the traditional understanding of jurisprudence in the Philippine legal system, it may mean law, including its intention, interpretation and application. Not only does it mean law in general, it is also connected to the concept of ethics and morality in the community because of its objective to achieve and promote justice as evidenced by its etymological origin. Jurisprudence and ethics share many societal similarities but their common denominator is their goal to establish a state of justness and wellness in the individual in particular and the society in general. Also, jurisprudence has been regarded as a separate philosophy or an independent body of knowledge, particularly when it is combined with other disciplines to form a new field of study such as medical jurisprudence, nursing jurisprudence, dental jurisprudence, pharmacy jurisprudence, socio-political jurisprudence, and ethno-jurisprudence, to name a few. In this case, jurisprudence does not only deal with the structure of the legal system such as equity or justice, but it “seeks to draw on unrestricted elements of life and the world to aid the critical study of law” along with the theory and philosophy of the discipline wherein it is utilized or made part of (ibid.). Applied to any professional practice, jurisprudence does not only deal with the legal standards in the practice of a profession but also with the factual circumstances and conditions affecting such profession. It is thus an ever-expanding field of study, particularly when it is integrated with any of the healthcare disciplines and/or professions, and when it is examined in its various contexts for different applications. 80 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed Emerging Fields in Health Jurisprudence Jurisprudence has acquired a deeper meaning in various fields of health. Nursing, Pharmacy, Dental Medicine and the other allied health professions have created or developed their respective fields of inquiry in the arena of health jurisprudence. They have apparently resolved or preferred to name the study of law and jurisprudence related to their respective professions by affixing jurisprudence to their respective disciplines such as nursing jurisprudence, pharmacy jurisprudence, dental jurisprudence, etc., thus using law and jurisprudence to amplify and advance their respective fields of study. They have developed their own bodies of knowledge that strengthen the practice of their respective professions. Firstly, nursing jurisprudence is important to nursing profession because it focuses on “the study of nursing laws, lawsuits, liabilities, legal principles, rules and regulations, case laws and doctrines affecting the nursing practice” (De Belen and De Belen, 2007). It includes the teaching of jurisprudence on fault and negligence to make every nurse more prepared and less vulnerable to professional malpractice, negligence or misconduct charges in the practice of the nursing profession. Secondly, the study of dental jurisprudence includes knowing not only the applicable laws and jurisprudence, but also understanding the extent of legal liability and accountability in case the dentist’s action causes damage, harm or injury to the patient. It means not only acquiring some knowledge about the nature and scope of lawsuits and liabilities in dental care management, but also becoming more aware of the standard of dental care and the act or omission that constitutes fault or negligence in the provision of oral treatment to the patient. Thus, dental jurisprudence clarifies and addresses the scope of dental medicine, the legal accountability in dentistry, and the issues, concerns and problems of dental practice and management in the country and the world over (De Belen, 2009 (2): 5). Thirdly, pharmacy jurisprudence is vital to all health-care professions because it is concerned not only with pharmacy education, regulation and practice but also the laws relating to drugs. It includes the study of the “Comprehensive Dangerous Drugs Act of 2002” (R.A. No. 9165) which punishes certain acts done in connection with prescription and administration of “dangerous drugs” and “controlled precursors and essential chemicals used to manufacture dangerous drugs.” Dangerous drugs include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act (Article I, Sec. 3 (j)). While controlled precursors and essential chemicals include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act (id., Sec. 3 (h)). Notably, the pharmacist, physician, dentist, veterinarian and other professionals authorized to dispense drugs under the law, are required to comply with the record keeping standards provided under Section 40 of R.A. No. 9165. VOLUME 34 NUMBER 2 (OCTOBER 2009) 81 Rustico T. De Belen Fourthly, therapeutic jurisprudence is another emerging field of jurisprudence. It is a term first used by Professor David Wexler, University of Arizona Rogers College of Law and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987. It was initially conceived to focus on the inquiry on the extent to which substantive and procedural rules, procedures and principles and the legal actors (lawyers and judges) generate or produce therapeutic or anti-therapeutic consequences for all individuals involved in the legal process. It has expanded its compass to include other pillars and stakeholders of the criminal justice system and all persons affected thereby such as the litigants, law-enforcers (police), prosecutors, court personnel and witnesses (ordinary and expert). It is an interdisciplinary approach to law that concentrates on the impact of legal rules, processes and institutions and the legal stakeholders on people’s emotional lives and psychological well-being. It envisions lawyers practicing with an ethic of care, a sense of justice and enhanced interpersonal skills, who respect the justice system and the rule of law, value the psychological and emotional well-being of their clients as well as their legal rights and interests, and address legal problems through therapeutic and problem-solving methods. Lastly, medical jurisprudence deals with issues and questions that bring medicine in contact with the law or vice versa, be they involving rights, privileges and other concerns in the entire gamut of physician-patient relationship. It must be viewed beyond its customary definition as the application of medical knowledge to elucidate legal issues and problems. It is concerned with the study of the legal aspects of medical practice as they involve risks to the public, brought about by negligence, and unlawful and unethical conduct. It deals with cases concerning blood relationship, mental illness, injury, or death resulting from violence. It addresses all issues or questions of health-care workers in conflict or contact with law and legal standards of professional practice, pertaining to the rights of individuals, particularly patients and health-care providers, and on the accountability of physicians for the injuries or damages suffered by the patients. It uses science and technology as implements of justice or to support the criminal justice system for it helps to punish the guilty and to save the innocent from punitive action. In a rape case, for example, medico-legal examination can prove the crime of rape through physical evidence such as hymenal laceration. In case of death, too, examination of the dead body can identify the cause of death, whether as a result of homicide or suicide as evidenced by stab wounds, drowning, asphyxia, fire arm, burn, poisoning and other physical evidence. In medical jurisprudence, medical knowledge can be used in various directions and standpoints: first, it can be applied to health promotion and disease prevention; second, it can serve not only to deter crime but to resolve it; third, it can be used for the purposes of research and development; and fourth, it can be utilized to render scientific opinion on legal problems and cases. Medical knowledge employed in resolving legal problems and cases may directly pertain to the function of a medicolegal expert or jurist. Scientific or expert opinion of medical experts are imperative in deciding whether an injury is dangerous to life, when it was inflicted, what type of 82 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed weapon caused it; was it ante-mortem or post-mortem, was it natural, accidental, suicidal or homicidal. On the other hand, the legal knowledge, case opinion or jurisprudential stance of lawyers on medical issues is needed in the construction of case theory, formulation of policy and decision-making, as the case may be. These are just among the significant functions of medical jurisprudence showing that it is indeed a branch of law because medical knowledge is used as a means to a legal end. Specifically, it serves as an implement of law in the administration of justice, particularly, to determine the agent of injury or death, the nature and characteristics of injury, and the approximate time of injury or death. Aside from cases of injury or death resulting from violence and accident, medical jurisprudence utilizes science and technology in cases concerning genetic relationships (e.g., DNA fingerprinting), rape, child abuse and other physical assaults (e.g., medical examination), and annulment of marriage on the ground of psychological incapacity (e.g., psychological and/or psychiatric examination), etc. In fine, in the study of medical jurisprudence, medicine can be considered as a means to attain the purpose of justice, while law can be employed to support medicine to achieve its noble goal - health. Medical jurisprudence is thus raised here from its demise and in the midst of the prevailing usage or immense popularity of the terms legal medicine and forensic medicine in the legal and medical professions in the Philippines. It is presented in this article and in the book Medical Jurisprudence of this author with the end in view of uniting and harmonizing medicine and the law through researches and studies, and adhering to the Rules of Court. As an autonomous discipline, it must be advanced by going out of the traditional school of thought - medical jurisprudence is the legal aspect of medical practice, while legal or forensic medicine is the application of medical knowledge in the practice of law. It can be further developed through continuous researches and studies, critical analyses and discussions of the application of science and technology in the court system, specifically forensic evidence. However, we can only do so much and go so far through proper usage and faithful compliance with the rules. Raising the Bar of Medical Jurisprudence Medical jurisprudence is a promising field of study that can cut across various areas of medicine, law and other allied health sciences. As it permeates other domains of learning, it can always be institutionalized to include countless subjects that traditionally belong to other disciplines. The process of knowledge generation and integration in medical jurisprudence can be effectively achieved through the construction of framework and the use of correct theoretical grid to sustain its empirical appeal. But this does not suggest incursion to the aspects that legally and logically or scientifically belong to the study of legal or forensic medicine. It simply advocates for an interdisciplinary approach in the study of medical jurisprudence to find its synergy with other disciplines and competently include the application of science and technology to promote and enhance the ethico-legal competence, integrity VOLUME 34 NUMBER 2 (OCTOBER 2009) 83 Rustico T. De Belen and professional responsibility and develop the legal skills and health consciousness of all persons affected by or involved in the administration of justice. This article maintains its position that medical jurisprudence deals with the laws and jurisprudence in medical education, medical regulation and medical practice, including the appreciation and application of science and technology in the court system and the protection and promotion of rights of all stakeholders in the health-care delivery system. For clarity, medical jurisprudence has its limitations and is not envisioned to penetrate, conduct or engage in specialized examinations and testings of the forensic medicine as they require highly technical education, training and skills, on top of astute knowledge of modern technology and equipment. Forensic medicine has developed various technological procedures among which are (a) the use of postmortem examination to determine and look into the human body for concealed wounds, foreign objects and other physical evidence; (b) the use of chemical analysis to see visible traces of poison, establish the identity of body, body parts and fluids, and other evidence; (c) the use of microscope to see tiny lesions, crystals, microbes, and distinguish hairs and fibers; and (d) spectroscopic analysis of blood, tissues and material found on or near the body of the victim to distinguish and match trace elements that link the body of the victim, crime scene and perpetrator. In this case, medical jurisprudence is limited to the analytical study of codes, ethico-legal standards, laws and jurisprudence in medical or forensic education and practice, including the appreciation and application of the findings of or evidence derived from forensic knowledge and technologies. With the processes of forensic science to obtain forensic evidence, it is expected that said evidence can stand the scrutiny of judges, expert witnesses, lawyers, professional peers and the public to make them useful to law and justice. Further, medical jurisprudence is much more useful in the government’s medical tourism program. It can be utilized not only in the formulation of legal rules and policies for health and wellness program of the government but also the economic analysis of the laws and regulations affecting the program. With its niche in tourism and hospitality, the Philippines can surely make a difference in its efforts to make the country a medical tourism destination. However, to succeed in this program and make it a key to economic development, it must conduct an economic analysis of law and jurisprudence to identify the changes needed in laws, rules, regulations and enforcement mechanisms in the medical tourism program to enhance economic efficiency and improve equity (Buscaglia, 1999). On top of modern medical infrastructure, the country needs to create a credible, accountable and acceptable legal system that provides safety, comfort and peace of mind for the local and foreign patients and investors. Physicians should neither be alarmed nor should they oppose the passage of medical malpractice law or any measure for the protection of patient’s rights as they can equally push for the passage of a new medical practice law to secure their profession and protect their interests. They must help the government in establishing a legal infrastructure for the medical tourism program that is investor84 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed friendly and patient-friendly to attract foreign patients and investors in the health sector. A successful medical tourism program will ultimately benefit the physicians in particular and the health sector in general because it would mean an increase in the number of patients and investments in the health-care delivery system to address the upsurge of patients, and the consequential increase of job opportunities not only for the physicians but all other health-care providers. Thus, the economic benefit of the law outweighs its speculative risks to the medical profession. The economic analysis of law is only one aspect of medical jurisprudence as a field of inquiry. It is also crucial to make an economic and legal analysis of the hospitals where the patients and health-care providers converge and where medical negligence usually happens. Hospitals now are highly organized and manned by highly professional medical staff whose competence and performance are subject to periodic review and evaluation to ensure the quality of patient care. This is the reason why the courts of various jurisdictions have found or suggested in some cases that the doctrine of corporate negligence is more in consonance with the modern hospitals, particularly when respondeat superior or apparent authority is unavailing; that the captain-of-the-ship doctrine is antiquated; and that the independent contractor doctrine merits a closer examination. However, the courts should always be cognizant of various doctrines in medical malpractice claims to effectively address the problem in allocating liability for the negligent acts of healthcare practitioners. They should always be mindful that not all cases can be boxed into the given standards and protocols or established legal doctrines. There will always be instances that the courts will be required to resolve on a case-to-case basis, guided by experience, the findings of experts, and the processes of science. It is also important to understand the impact of the legal processes upon the well-being of those involved and their implications for the attainment of the objectives of the criminal justice system. Litigation is indeed a very stressful endeavor or activity. Medical jurisprudence could address the implications of stress in the administration of justice by knowing its impact upon the health and well-being of those involved. It can hardly be relied upon for development of the means, methods and approaches to mitigate and eliminate the stress of litigation by judicial counseling, offender rehabilitation, and other therapeutic practices to alleviate anxiety and distress. This has been filled by therapeutic jurisprudence, which is regarded as a branch of health jurisprudence that focuses on the role of law as a healing agent, particularly “the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects” (Schma, 2000: 1). This discipline is essential not only to the study of medical jurisprudence but also in the cross-border healthcare program of the government. Equally important in medical jurisprudence is the application of science and technology in the court system. Neither envisioning to have encyclopedic knowledge of law and economics, and science and technology nor intending to engage in an exhaustive inquiry for cosmic understanding of all disciplines related to this field of VOLUME 34 NUMBER 2 (OCTOBER 2009) 85 Rustico T. De Belen study, medical jurisprudence aims to raise the standard of medical education, regulation and practice in the Philippines and to provide particularized solutions to legal issues and disputes in the combined areas of law and medicine. It leads and works to understand how the processes of science can further serve the end of justice by not limiting its inquiry into the standard of care and protocolized diagnosis and treatment in medical malpractice cases. And it aims to expand its body of knowledge by viewing it in its various contexts to fully appreciate its compass and magnitude. Finally, when judges and those learned in laws use medical findings and evidence including their expert opinions and apply them in their cases or decisions, it is medical jurisprudence no less. Medical jurisprudence brings medicine and the law to aid the administration of justice and to protect not only the patients but also physicians and all other health-care workers involved in the healthcare industry. One vital interest of medical jurisprudence is the reliability and acceptability of the process and outcome of science and technology in the court’s system. Thus, the judges handling medical malpractice cases as triers of facts need to have forensic or medical training to become effective gatekeepers of forensic evidence. REFERENCES Buscaglia, Edgardo. Law and Economic Development. Hoover Institute, Stanford University, 1999. Capule, Rodel V. Medical (Mal)Practice Law and Jurisprudence. Lecture Paper for MCLE Seminar conducted by Arellano Law Foundation, May 2007. De Belen, Rustico T (1). Medical Jurisprudence. Quezon City: C & E Publishing, Inc., 2009. De Belen, Rustico T (2). Dental Jurisprudence. Quezon City: C & E Publishing, Inc., 2009. De Belen, Rustico T. and De Belen, Donna Vivian V. Nursing Law, Jurisprudence and Professional Ethics. Quezon City: C & E Publishing, Inc., 2007. Ng, Peter P. and Po, Philip U. Forensic Science. Manila: Philippine College of Medical Researchers, Inc., 2007. Regalado, Maambong E. Forensic Ballistics, Dactyloscopy/Science of Fingerprints, Examination of Questioned Documents and Other Trace Evidence. MCLE Lecture conducted by Legis Forum Inc., 2008. Schama, Honorable William. Therapeutic Jurisprudence. National Center for State Courts, 2000. Solis, Pedro P. Legal Medicine. Quezon City: RP Garcia Publishing Co.,1987. Solis, Pedro P. Medical Jurisprudence. Quezon City: Garotech Publishing, 1988. 86 IBP JOURNAL R aising Medical Jurisprudence from its Death Bed Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal Solo V. Tibe* “There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance . . . . Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” US Justice Hugo L. Black Introduction The framers of the 1987 Philippine Constitution enshrined “easy access to justice by the poor” and “protection to labor” as sacrosanct principles of our democracy. From the Articles on the Declaration of State Policies and Principles, the Bill of Rights up to the Social Justice and Human Rights provisions, the right to access to justice of the lowly working man has been sanctified. “The State shall promote social justice in all phases of national development. (Article II, Section 10) “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” (Article II, Section 18) “Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.” (Article III, Section 11) “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. * Legal Counsel, National Federation of Labor Unions (NAFLU), one of the largest labor federations in the Philippines. VOLUME 34 NUMBER 2 (OCTOBER 2009) 87 Solo V. Tibe It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. (Article XIII, Section 3) It is said that the Constitutional framers considered the power base of the 1986 socio-political revolution which ousted the 20-year dictatorship. That power base emanated from the people, most of whom were lowly workers, farmers, destitutes and members of marginalized sectors. This mass base has proven critical and indispensable in many a political transition in the country, and arguably was observed even recently with the demise of a popular icon of Philippine democracy, former President Corazon C. Aquino. The United Nations Development Programme (UNDP) defines “access to justice” as “the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through formal and informal justice systems, for grievances in accordance with human rights principles and standards.” Towards this end, the Supreme Court has adopted philosophies, rules, projects and programs placing prime importance on easy access to justice by the poor. Such is the case of the Action Program for Judicial Reforms initiated by former Chief Justice Hilario G. Davide and the judicial philosophy of Liberty and Prosperity of former Chief Justice Artemio V. Panganiban. And, certainly, this is the moving force and direction of the Justice on Wheels Program as well as the Access to Justice program being undertaken by current Chief Justice Reynato Puno. There remains however pockets of areas in the current judicial system that may not be consistent and compatible with the foregoing democratic objectives We refer to the apparent difficulty of certain types of workers in raising their cases, however meritorious, to the appellate courts due to the high cost of docket fees and required documentation. 88 IBP JOURNAL Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal Payment of Fees and Implications to Access to Justice of Labor The Supreme Court, by the exercise of its exclusive powers to regulate the judicial system, has established rules in the filing of actions from the lower court up to the appellate courts and fixing the docket fees thereto. Settled is the rule that payment of docket fees is jurisdictional, the absence of which is fatal to the action of the party raising it. “It is well-established that the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. This is so because a court acquires jurisdiction over the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court. The payment of the full amount of the docket fee is a sine qua non requirement for the perfection of an appeal. The court acquires jurisdiction over the case only upon the payment of the prescribed docket fees.” (Meatmasters Internatonal Corporation vs. Lelis Integrated Development Corp., G.R. No. 163022, 28 February 2005) Then again, the Court has allowed parties to be exempted from payment of docket fees in certain exceptional cases, mostly because they are pauper litigants. This paper advocates that there are parties under peculiar circumstances, such as the workers enumerated below, who may not be technically considered pauper litigants, but arguably stand on the same footing: 1. Workers dismissed for lack of just and authorized causes who have been awaiting resolution of their cases at the NLRC for more than six (6) months; 2. Workers who were retrenched due to unlawful closure of the company. 3. Union officers and members who are parties to inclusion-exclusion cases or pre-election controversies raised on appeal. 4. Union officers and members who, after the initial period of recognition by any valid mode of election, conducted a strike due to the refusal to bargain of management; 5. Union busting cases during the early period of union formation; 6. Surviving bereaved children and widow/widower of the Overseas Filipino Workers (OFWs), either land-based or sea-based, who are claiming permanent disability benefits and death benefits for more than six months. VOLUME 34 NUMBER 2 (OCTOBER 2009) 89 Solo V. Tibe It is interesting to note that the National Labor Relations Commission does not charge any filing fee at the initiatory arbitration branch level. However, the fee is pegged at P550.00 on appeal at the commission level. The rate then skyrockets and multiplies a thousand fold or 1000% when a worker raises his action to the appellate courts, to wit: Rule Action Venue Fe e s 65 Petition for Certiorari TRO CA P 5000.00 500.00 45 Petition for Review on Certiorari TRO SC 4500.00 500.00 This is not to mention the cost of documentation and the reproduction of voluminous documents plus the cost of serving to the public and private respondents. Together, these financial requirements stand as big burdens and serious impedimentz, and may even be discriminatory to the lowly workers who wish to raise their cases to the higher courts to seek relief. In so saying, this paper does not seek to discount the importance of fee collection in the court system as this helps defray the cost of judicial operations. In fact, it is part of the fiscal autonomy being enjoyed by the judiciary—to be able to raise its own revenue. But it must be stressed that such fees must take into account the capacity to pay of party litigants. Certainly, it cannot be gainsaid that workers, especially those who have been displaced, have limited financial ability. Take for instance, the case of a security guard who served a security agency for more than twenty (20) years and then was floated for more than six (6) months and later dismissed due to an alleged serious financial setback. After more than six months waiting for posting and another six months or more fighting his case at the Labor Arbiter and the NLRC, this illegally dismissed worker has to produce at least Seven Thousand Pesos (P7,000.00) to defray his dockets fees, cost of reproduction documents and cost of courier service to the opposing parties to file a petition for certiorari on the NLRC’s adverse ruling, sans any professional fee to his counsel assuming his case is under pro bono arrangement! Another example is the case of union officers and members who were illegally dismissed during the early stage of union formation or negotiation for a collective bargaining agreement, and the battle to reclaim their positions at the labor arbitration level lasted more than six months. These workers cannot secure gainful employment with another employer since they are union officers and members, while they have no income for the last six months. They most certainly cannot afford to raise a minimum fund of P7,000.00 to file a petition for certiorari against an adverse NLRC ruling. During this period, the union only de facto exists and, as such, has no standing fund to cover the cost of litigation at the appellate courts. 90 IBP JOURNAL Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal Or take the case of inclusion-exclusion and pre-election cases at the shop-floor whereby the management made all sorts of legal maneuvers such that the case went straight to the Secretary of Labor and Employment and later the local union received an adverse ruling. The local union will definitely be at a loss how to raise their case to the CA for at that point. It remains de facto with no operational fund to defray a higher plane of legal battle and it can only rely on its mother organization, the labor federation which has yet to receive any share from the local union dues. Furthermore, consider the case of a mother and child of a deceased Filipino seaman, who died due to cirrhosis of the liver, hypertension or any work-related disease within the period of his overseas employment contract or shortly thereafter. Arguably, the family of an OFW has a good financial condition during the time that the OFW is still fit to work and can send dollar remittances. However, the family’s standing becomes different when the same OFW contracts a permanent serious disease or dies due to an occupational disease, and the family has to fight for claims against the foreign principal and the domestic agency at the NLRC. In a one-year period of actual arbitration, the family becomes destitute due to the cost of medication, hospitalization and therapy, such that when they now receive an adverse ruling from the NLRC, they can hardly afford to raise their case to the appellate courts due to their own dire needs. There is not much government data to reflect this truism, but based on the 2006-2007 annual report of the NLRC, the possibility of workers raising their cases up to the CA and SC for reliefs is quite unlikely. Cases Received 2006 2007 Commission 10,110 9,069 Regional Arbitration Branches 30,543 31,644 Commission 17,927 17,342 Regional Arbitration Branches 45,083 46,338 Cases Handled Source: NLRC Performance Report 2006-2007 In the said NLRC report, cases received at the regional arbitration branches would run from 30,000 to 31,000 cases per year, but the number is significantly reduced to one third (1/3) upon reaching appeal at the commission level. The report is incomplete and it does not reflect the figures of workers withdrawing or desisting from appealing their cases due to financial considerations. VOLUME 34 NUMBER 2 (OCTOBER 2009) 91 Solo V. Tibe The Rule on Pauper Litigants Arguably, the present system provides for a mode by which parties can raise their cases to the higher courts as “pauper litigants,” and be exempted from docket fees. On 01 March 1, 2000, Rule 141 on Legal Fees was amended by the Court in A.M. No. 00-2-01-SC, whereby certain fees were increased or adjusted. In this Resolution, the Court amended Section 16 of Rule 141, making it Section 18, which now reads: “Section 18. Pauper-litigants exempt from payment of legal fees.—Pauper litigants (a) whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorably to the pauper litigant, unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn the gross income abovementioned, nor do they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred.” More recently on 16 August 2004, in view of the passage of Republic Act No. 9227 introducing a new wave of increase in docket fees, the Court further amended Section 18 of Rule 141 in Administrative Matter No. 04-2-04-SC, which became effective on the same date. The rule on pauper litigants now reads: “Sec. 19. Indigent litigants exempt from payment of legal fees.– Indigent litigants whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and who do not own a real property with a fair market value as stated in the current tax declaration of more than Three Hundred Thousand Pesos (P300,000.00) shall be exempt from payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. 92 IBP JOURNAL Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. The current tax declaration, if any, shall be attached to the litigant’s affidavit.” (Emphasis supplied.) Amendments to Rule 141 (including the amendment to Rule 141, Section 18) were made to implement RA 9227 which brought about new increases in filing fees. Specifically, in the 16 August 2004 amendment, the ceiling for the gross income of litigants applying for exemption and that of their immediate family was increased from PhP 4,000.00 a month in Metro Manila and PhP 3,000.00 a month outside Metro Manila, to double the monthly minimum wage of an employee; and the maximum value of the property owned by the applicant was increased from an assessed value of PhP 50,000.00 to a maximum market value of PhP 300,000.00, to be able to accommodate more indigent litigants and promote easier access to justice by the poor and the marginalized in the wake of these new increases in filing fees. Section 22, Rule III of the Rules of Court likewise provides: “Pauper litigant.—Any court may authorize a litigant to prosecute his action or defense as a pauper upon a proper showing that he has no means to that effect by affidavits. certificate of the corresponding provincial, city or municipal treasurer, or otherwise. Such authority once given shall include an exemption from payment of legal fees and from filing appeal bond, printed record and printed brief. The legal fees shall be a lien to and, judgment rendered in the case favorably to the pauper, unless the court otherwise provides.” (Emphasis supplied) In the case of Algura vs. Local Government of the City of Naga (G.R. No. 150135, October 30, 2006), the Court explained in greater detail the rules on pauper litigants. It noted therein that under the present rules, if an application for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when an application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the indigency test under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption. VOLUME 34 NUMBER 2 (OCTOBER 2009) 93 Solo V. Tibe Revisiting the Pauper Litigant Rule It is submitted however that, despite the noble objectives in crafting the “revitalized” Rule 141 or Rule 3, the application of the same still stands stringent and inconvenient, if not discouraging to the foregoing workers. For one thing, the rigors of going through the process would be an added imposition on the litigating workers, what with the attendant delay and the uncertain result of the application. More so, these workers do not necessarily fit into the description under Rule 141, as they are minimum wage earners. In addition, an OFW may have established at least a family home, but hardly will his family dispose the same for legal fees only and disposition of which will entail another pile of expenses. Due to the big loss of their income for a long period of time, coupled with the high cost of docket fees, they now lie on the same boat as pauper litigants. Chances are, these workers are more inclined not to raise their cases, however meritorious they are, to the appellate courts since they have no wherewithal to do it. They will simply resort to silence and keep their grievances to themselves, letting the injustice committed against continue unchecked and unpunished. Meanwhile, on the other side of the fence, the offenses of management to labor continue and perpetuate. Management knows very well that the lowly workers cannot last the long uphill climb of legal battles. Surely, even without official government statistics, many cases of destitute workers have been prematurely lost as they opted to keep their grievances to themselves than bring them to the appellate courts precisely due the high cost of docket fees. It is for these reasons that this writer advocates that the Supreme Court ought to revisit the rules on docket fees, thus allow the foregoing groups of workers sufficient latitude to raise their cases on appeal at the CA and the SC as groups similarly situated to pauper litigants. Full exemption to the rules will be the best scenario, but a graduation of fees may be acceptable depending on the scale that can be established. Conclusion The Court’s requirements on payment of docket fees for all legal actions, initatory as well as those cases raised on appeal and certiorari to the appellate courts remain sound and very much applicable to a wide range of litigants. It is noteworthy that the Court has established an alternative mode for indigent parties to have access to justice under the Rules of Court. This paper however only seeks some more possible exceptions to the payment of docket fees, specifically for certain groups of workers who are in a peculiarly difficult economic standing, but not necessarily falling under the category of pauper litigants as defined under the rules. 94 IBP JOURNAL Exemption on Docket Fees for Selected Labor Cases on Certiorari and Appeal A popular Philippine President once said: “Those who have less in life should have more in law.” This adage has become a cornerstone for future state policies and declarations to accommodate the poor, which includes the lowly working man. This writer adheres to such a maxim and advocates for the democratic principles of the 1987 Constitution to be given more fruition in order to benefit the members of the working class and the families who are dependent on them. All these, in accordance with the Constitutional principles of equality, protection to labor, democracy and social justice. VOLUME 34 NUMBER 2 (OCTOBER 2009) 95 Eduardo A. Labitag Survey of 2008 Court Decisions on Property and Land Registration Eduardo A. Labitag* I. Classification of Property A . For the register of deeds to issue a new certificate of title, she must require the submission of the approved subdivision plan together with the approved technical descriptions and the corresponding owner’s duplicate certificate of title. Secretary of the DENR vs. Yap G.R. No. 167707.October 8, 2008. (568 SCRA 164) FACTS: These two consolidated cases involved the right of the present occupants of Boracay Island to secure titles over their occupied lands. The first was a petition for review on certiorari of the Decision of the Court of Appeals affirming that of the Regional Trial Court in Aklan granting the petition for declaratory relief filed by respondents-claimants Mayor Jose Yap, et al. and ordering the survey of Boracay for titling purposes. The second was a petition for prohibition, mandamus, nullification of Proclamation No. 1064 issued by President Gloria Macapagal-Arroyo classifying Boracay into reserved forest and agricultural land. HELD: A positive act declaring land as alienable and disposable is required. In keeping with the presumption of State ownership, the Court has time and again emphasized that there must be a positive act of the government, such as an official proclamation, declassifying inalienable public land into disposable land for agricultural or other purposes. In fact, Section 8 of CA No. 141 limits alienable or disposable lands only to those lands which have been “officially delimited and classified.” The burden of proof in overcoming the presumption of State ownership of the lands of the public domain is on the person applying for registration (or claiming ownership), who must prove that the land subject of the application is alienable or disposable. To overcome this presumption, incontrovertible evidence must be established that the land subject of the application (or claim) is alienable or disposable. To prove that the land subject of an application for registration is alienable, the applicant must establish the existence of a positive act of the government such as a presidential proclamation or an executive order; an administrative action; investigation reports of Bureau of Lands investigators; and a legislative act or a statute. The applicant may also secure a certification from the government that the land claimed to have been possessed for the required number of years is alienable and disposable. * Professor, U.P. College of Law 96 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration The 1935 Constitution classified lands of the public domain into agricultural, forest or timber. Meanwhile, the 1973 Constitution provided the following divisions: agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other classes as may be provided by law, giving the government great leeway for classification. Then the 1987 Constitution reverted to the 1935 Constitution classification with one addition: national parks. Of these, only agricultural lands may be alienated. Prior to Proclamation No. 1064 of May 22, 2006, Boracay Island had never been expressly and administratively classified under any of these grand divisions. Boracay was an unclassified land of the public domain. Philippine land law traces its roots to the Regalian Doctrine. Upon the Spanish conquest of the Philippines, ownership of all lands, territories and possessions in the Philippines passed to the Spanish Crown. The Regalian doctrine was first introduced in the Philippines through the Laws of the Indies and the Royal Cedulas, which laid the foundation that all lands that were not acquired from the Government, either by purchase or by grant, belong to the public domain. The Laws of the Indies was followed by the Le y Hipotecaria or the Mortgage Law of 1893. The Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims. The Royal Decree of 1894 or the Maura Law partly amended the Spanish Mortgage Law and the Laws of the Indies. It established possessory information as the method of legalizing possession of vacant Crown land, under certain conditions which were set forth in said decree. Under Section 393 of the Maura Law, an informacion posesoria or possessory information title, when duly inscribed in the Registry of Property, is converted into a title of ownership only after the lapse of twenty (20) years of uninterrupted possession which must be actual, public, and adverse, from the date of its inscription. However, possessory information title had to be perfected one year after the promulgation of the Maura Law, or until April 17, 1895. Otherwise, the lands would revert to the State. In sum, private ownership of land under the Spanish regime could only be founded on royal concessions which took various forms, namely: (1) titulo real or royal grant; (2) concesion especial or special grant; (3) composicion con el estado or adjustment title; (4) titulo de compra or title by purchase; and (5) informacion posesoria or possessory information title. The Court traced the history of the law or disposition of public lands as follows: The first law governing the disposition of public lands in the Philippines under American rule was embodied in the Philippine Bill of 1902. By this law, lands of the public domain in the Philippine Islands were classified into three (3) grant divisions, to wit: agricultural, mineral, and timber or forest lands. The act provided for, among others, the disposal of mineral lands by means of absolute grant (freehold system) and by lease (leasehold system). It also provided the definition by exclusion of agricultural public lands. Interpreting the meaning of “agricultural lands” under the Philippine Bill of 1902, the Court declared in Mapa vs. Insular Government. In other words, that the phrase “agricultural land” as used in Act No. 926 means those public lands acquired from Spain which are not timber or mineral lands. On February 1, 1903, the Philippine Legislature passed Act No. 496, otherwise known VOLUME 34 NUMBER 2 (OCTOBER 2009) 97 Eduardo A. Labitag as the Land Registration Act. The act established a system of registration by which recorded title becomes absolute, indefeasible, and imprescriptible. This is known as the Torrens system. Concurrently, on October 7, 1903, the Philippine Commission passed Act No. 926, which was the first Public Land Act. The Act introduced the homestead system and made provisions for judicial and administrative confirmation of imperfect titles and for the sale or lease of public lands. It permitted corporations regardless of the nationality of persons owning the controlling stock to lease or purchase lands of the public domain. Under the Act, open, continuous, exclusive, and notorious possession and occupation of agricultural lands for the next ten (10) years preceding July 26, 1904 was sufficient for judicial confirmation of imperfect title. On November 29, 1919, Act No. 926 was superseded by Act No. 2874, otherwise known as the second Public Land Act. This new, more comprehensive law limited the exploitation of agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same privileges. For judicial confirmation of title, possession and occupation en concepto dueòo since time immemorial, or since July 26, 1984, was required. After the passage of the 1935 Constitution, CA No. 141 amended Act No. 2874 on December 1, 1936. To this day, CA No. 141, as amended, remains as the existing general law governing the classification and disposition of lands of the public domain other than timber and mineral lands, and privately owned lands which reverted to the State. Section 48(b) of CA No. 141 retained the requirement under Act No. 2874 of possession and occupation of lands of the public domain since time immemorial or since July 26, 1894. However, this provision was superseded by Republic Act (RA) No. 1942, which provided for a simple thirty-year prescriptive period for judicial confirmation of imperfect title. The provision was last amended PD No. 1073, which now provides for possession and occupation of the land applied for since June 12, 1945, or earlier. The issuance of PD No. 892 on February 16, 1976 discontinued the use of Spanish titles as evidence in land registration proceedings. Under the decree, all holders of Spanish titles or grants should apply for registration of their lands under Act No. 496 within six (6) months from the effectivity of the decree on February 16, 1976. Thereafter, the recording of all unregistered lands shall be governed by Section 194 of the Revised Administrative Code, as amended by Act No. 3344. On June 11, 1978, Act No. 496 was amended and updated by PD No. 1529, known as the Property Registration Decree. It was enacted to codify the various laws relative to registration of property. It governs registration of lands under the Torrens system as well as unregistered lands, including chattel mortgages. Regarding claimants’ submission that Boracay was already an agricultural land pursuant to the old cases Ankron vs. Government of the Philippine Islands (1919) and De Aldecoa vs. The Insular Government (1909). The Court said that these cases were decided under the provisions of the Philippine Bill of 1902 and Act No. 926. There is a statement in these old cases that “in the absence of evidence to the contrary, that in each case the lands are agricultural lands until the contrary is shown. The Court ruled that private claimants’ reliance on Ankron and De Aldecoa was misplaced. These cases did not have the effect of converting the whole of Boracay Island or portions of it into agricultural lands. It should be stressed that the Philippine Bill of 1902 98 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration and Act No. 926 merely provided the manner through which land registration courts would classify lands of the public domain. Whether the land would be classified as timber, mineral, or agricultural depended on proof presented in each case. Ankron and De Aldecoa were decided at a time when the President of the Philippines had no power to classify lands of the public domain into mineral, timber, and agricultural. At that time, the courts were free to make corresponding classifications in justiciable cases, or were vested with implicit power to do so, depending upon the preponderance of the evidence. This was the Court’s ruling Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca vs. Republic (G.R. No. 151312, August 30, 2006, 500 SCRA 209). The Court reasoned that “to aid the courts in resolving land registration cases under Act No. 926, it was then necessary to devise a presumption on land classification. Thus evolved the dictum in Ankron that “the courts have a right to presume, in the absence of evidence to the contrary, that in each case the lands are agricultural lands until the contrary is shown. The presumption in Ankron and De Aldecoa cannot be expanded to an argument that all lands of the public domain had been automatically reclassified as disposable and alienable agricultural lands. By no stretch of imagination did the presumption covnert all lands of the public domain into agricultural lands. In any case, the assumption in Ankron and De Aldecoa was not absolute. Land classification was, in the end, dependent on proof. If there was proof that the land was better suited for non-agricultural uses, the courts could adjudge it as a mineral or timber land despite the presumption. The Court concluded that it was Proclamation No. 1064 of 2006 which positively declared part of Boracay, specifically, six hundred twenty-eight and 96/100 (628.96) hectares of agricultural land as alienable and open to private ownership. Sections 6 and 7 of CA No. 141 provided that it is only the President, upon the recommendation of the proper department head, who has the authority to classify the lands of the public domain into alienable or disposable, timber and mineral lands. In issuing Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the authority granted to her to classify lands of the public domain, presumably subject to existing vested rights. Classification of public lands is the exclusive prerogative of the Executive Department, through the Office of the President. Courts have no authority to do so. Absent such classification, the land remains unclassified until released and rendered open to disposition. Private claimants are not, however, entitled to apply for judicial confirmation of imperfect title under CA No. 141; they do not have vested rights over the occupied lands under the said law either. There are two requisites for judicial confirmation of imperfect or incomplete title under CA No. 141, namely: (1) open, continuous, exclusive, and notorious possession and occupation of the subject land by himself or through his predecessors-in-interest under a bonafide claim of ownership since time immemorial or from June 12, 1945; and (2) the classification of the land as alienable and disposable land of the public domain. VOLUME 34 NUMBER 2 (OCTOBER 2009) 99 Eduardo A. Labitag B. Non-registration of patent with Register of Deeds, the deed as a contract between the Government and the patentee rendered it functus officious. Pasiño vs. Monterroyo G.R. No. 159494. July 31, 2008. [560 SCRA 739 (2008)] FACTS: Petitioners filed an action for recovery of possession and damages against respondents. They alleged that the subject land was occupied, cultivated and cleared by Laureano Pasiño in 1933; that after Laureano died, the Dir. of Lands issued an Order for the issuance of a homestead patent in his favor. However, the heirs of Laureano failed to receive the order. Consequently, the land was not registered. In their answer, respondents claimed that they had been in open, continuous, exclusive and notorious possession of the subject lot for over 30 years. HELD: The Court ruled in favor of the respondents. In Director of Lands vs. IAC [146 SCRA 509 (1986)], the Court held that alienable public land held by a possessor, continuously or through his predecessors-in-interest, openly, continuously and exclusively for the prescribed statutory period (30 years under the Public Land Act, as amended) is converted to private property by the mere lapse or completion of the period, ipso jure. Furthermore, the Court stated that once a homestead patent in accordance with law is registered the certificate of title issued by virtue of the patent has the force and effect of a Torrens title issued under the land registration law. In this case, the issuance of a homestead patent in 1952 in favor of Laureano was not registered. Sec. 103 of Presidential Decree No. 1529 mandates the registration of patents since it is the operative act to convey the land to the patentee. Non-registration of patent with Register of Deeds, the deed as a contract between the Government and the patentee rendered it functus officious. C . Forest lands cannot be owned by private persons. It is not registrable whether the title is Spanish title or a Torrens title. Land Bank vs. Republic G.R. No. 150824. February 4, 2008. [543 SCRA 453(2008)] HELD: The Court held that the contention of petitioner Land Bank that it had an interest over the subject land as a mortgagee had no merit. The mortgagor, Lourdes Farms, Inc. from which Land Bank supposedly obtained its alleged interest, had never been the owner of the mortgaged land. Acquisition of the subject land by Lourdes Farms, Inc., was legally impossible since it was a forest land, not alienable. Under Art. 2085 of the Civil Code, it is essential that the mortgagor be the absolute owner of the thing mortgaged. Since Lourdes Farms Inc. is not the owner of the land, it does not have capacity to mortgage it to LBP. 100 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Even assuming that Land Bank was able to obtain its own TCT over the property by means of its mortgage contract with Lourdes Farms, Inc. the title must also be cancelled as it was derived from OCT No. P-2823 which was not validly issued to Bugayong (who obtained the OCT in his name). Forest lands cannot be owned by private persons. It is not registrable whether the title is a Spanish title or a Torrens title. It is well-settled that a certificate of title is void when it covers property of public domain classified as forest or timber or mineral lad. Any title issued covering non-disposable lots even in the hands of an alleged innocent purchaser for value shall be cancelled. II. Possession A. Specific Rights Found in the Civil Code A. Article 430 of the Civil Code gives every owner the right to enclose or fence his land or tenement by means of walls, ditches, hedges or any other means. This right f lows from the right of ownership. Aneco Realty and Development Corp. vs. Landex Development Corp. G.R. No. 165952. July 28, 2008. [560 SCRA 182 (2008)] FACTS: Petitioner Aneco filed a complaint for injunction against respondent Landex. Prior thereto, FHDI sold 22 lots to petitioner and 17 lots to respondent. The dispute arose when Landex started the construction of a concrete wall on one of its lots. To restrain the construction of the wall, petitioner filed the said case. HELD: The Court held that the complaint for injunction should be dismissed for lack of merit. Article 430 of the Civil Code gives every owner the right to enclose or fence his land or tenement by means of walls, ditches, hedges or any other means. The right to fence flows from the right of ownership. As owner of the land, Landex may fence his property subject only to the limitations and restrictions provided by law. Absent a clear legal and enforceable right, as in this case, the Court will not interfere with the exercise of an essential attribute of ownership. B. Available Actions to Recover Possession / Ownership 1. Accion Reinvicatoria - Action to recover the real right of ownership of immovable property. 2. Accion Publiciana – Action to recover real right of possession or possession de jure over immovable property. 3. Action for Ejectment (for immovable property) – to recover de facto possession or actual, physical possession. VOLUME 34 NUMBER 2 (OCTOBER 2009) 101 Eduardo A. Labitag B. An ejectment suit is an action in personam wherein judgment is binding only upon parties properly impleaded and given an opportunity to be heard. Floyd vs. Gonzales G.R. No. 169047.November 3, 2008 FACTS: Petitioners Floyd and Calixtro were occupants of a lot which was the subject of a complaint for forcible entry filed by respondents Nisperoses against Abarnas for constructing a house on the subject land through stealth and strategy. Olongapo RTC ordered Abarnas to vacate. Floyd, Calixtro and Ong Sotto, the occupants, filed a case for injunction enjoining Sheriff Gonzales from enforcing the judgment. HELD: An ejectment suit is an action in personam wherein judgment is binding only upon parties properly impleaded and given an opportunity to be heard. Petitioners were not made party-defendants by the Nisperoses. In the forcible entry case, petitioners had not been given their day in court to present their side to prove their alleged bona fide possession. Neither was a court hearing held to prove that they are mere successors-in-interest, guests, or agents of defendant Abarnas when the ejectment judgment was sought to be enforced against them. Thus, they cannot be bound by the decision in the ejectment case. However, they themselves admitted having possessed the subject land only in 1986 and 1988 respectively. These cannot prevail over the Nisperoses’ possession through their father Igmedio that started in 1950. Thus, Nisperoses have the better right to possession, prior possession having been proved. CRITIQUE: This case involved a forcible entry case between the Nisperoses and Abarnases. Floyd and Calixtro had been in possession of the property since 1986 and 1988, respectively. They are possessors with a real right or de jure possessors. The lower court ruling the forcible entry case can only rule on the actual physical possession of the property. C . In forcible entry cases, in order to constitute force, the trespasser does not have to institute a state of war. Arbizo vs. Santillan G.R. No. 171315. February 26, 2008. [546 SCRA 610 (2008)] HELD: As to whether respondents were deprived of possession by force, intimidation, strategy or stealth, the acts of the petitioner in unlawfully entering the subject properties, erecting a structure thereon and excluding therefrom the prior possessor would necessarily imply the use of force. In order to constitute force, the trespasser does not have to institute a state of war. 102 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration a. Forcible Entry Gonzaga vs. CA G.R. No. 130841. February 26, 2008. [546 SCRA 532 (2008)] HELD: For a forcible entry suit to prosper, the person lawfully entitled to the possession of the property must allege and prove that he was in prior physical possession and defendant deprived him of such possession through any of the grounds provided in Rule 70, Sec. 1 Rules of Court. The Court quoted Mediran vs. Villanueva [37 Phil. 752 (1918)], on why this is so, to wit: “Juridically speaking, possession is distinct from ownership, and from this distinction are derived legal consequences of much importance. In giving recognition to the action of forcible entry and detainer the purpose of the law is to protect the person who in fact has actual possession; and in case of controverted right, it requires the parties to preserve the status quo until one or the other of them sees fit to invoke the decision of a court of competent jurisdiction upon the question of ownership. It is obviously just that the person who has first acquired possession should remain in possession pending this decision; and the parties cannot be permitted meanwhile to engage in petty warfare over the possession of the property which is the subject of the dispute. To permit this would be highly dangerous to individual security and disturbing to social order. Therefore, where a person supposes himself to be the owner of a piece of property and desires to vindicate his ownership against the party actually in possession, it is incumbent upon him to institute an action to this end in a court of competent jurisdiction; and he cannot be permitted, by invading the property and excluding the actual possessor, to place upon the latter the burden of instituting an action to try the property right.” In Heirs of Laurora vs. Sterling Technopark III [401 SCRA 181 (2003)], the Court stressed the basic inquiry in forcible entry cases: “The only issue in forcible entry cases is the physical or material possession of real property – possession de facto, not possession de jure. Only prior physical possession, not title, is the issue. If ownership is raised in the pleadings, the court may pass upon such question, but only to determine the question of possession.” The ruling in Bejar vs. Caluag [516 SCRA 84 (2007)] was of the same tenor, but formulated a bit differently, thus: “To make out a suit for illegal detainer of forcible entry, the complaint must contain two mandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2) deprivation of said VOLUME 34 NUMBER 2 (OCTOBER 2009) 103 Eduardo A. Labitag possession by another by means of force, intimidation, threat, strategy, or stealth. This latter requirement implies that the possession of the disputed property by the intruder has been unlawful from the very start. Then, the action must be brought within one year from the date of actual entry to the property or, in cases where stealth was employed, from the date the plaintiff learned about it.” b.Unlawful Detainer c. Distinction between Forcible Entry and Unlawful Detainer D. The distinction between forcible entry and unlawful detainer was discussed. Acaylar, Jr. vs. Harayo G.R. No. 176995. July 30, 2008. [560 SCRA 624 (2008)] FACTS: Respondent Harayo filed a complaint for forcible entry against petitioner Acaylar. Respondent alleged that he acquired the subject property from the petitioner’s parents by virtue of a Deed of Sale. However, petitioner allegedly, using strategy, intimidation, threats and stealth, entered the subject property, cut the tall grasses in the coconut plantation, gathered the fallen coconuts and other fruits, and pastured his cows and other animals thereon. In his answer, petitioner claims that he was already in possession of the property since 1979 as administrator thereof. The issue is whether the complaint for forcible entry was proper. HELD: The Court held that Harayo has no case for forcible entry since petitioner Acaylar was in prior physical possession. Under Rule 70, Sec. 1 of the Rules of Court, there are two entirely distinct and different causes of action, to wit: (1) a case for forcible entry, which is an action to recover possession of a property from the defendant whose occupation thereof is illegal from the beginning as he acquired possession by force, intimidation, threat, strategy or stealth; and (2) a case for unlawful detainer, which is an action for recovery of possession from defendant whose possession of the property was inceptively lawful by virtue of a contract (express or implied) with the plaintiff, but became illegal when he continued his possession despite the termination of his right thereunder. The distinctions between the two forms of ejectment suits are: first, in forcible entry, the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant, whereas, in unlawful detainer, the plaintiff need not have been in prior physical possession; second, in forcible entry, the possession of the land by the defendant is unlawful form the beginning as he acquires possession thereof by force, intimidation, threat, strategy or stealth, while in unlawful detainer, the possession of the defendant is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff; third, in forcible entry, the law does not require a previous 104 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration demand for the defendant to vacate the premises, but in unlawful detainer, the plaintiff must first make such demand, which is jurisdictional in nature. It is the nature of defendant’s entry into the land determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer. Sales vs. Barro G.R. No. 171678. December 10, 2008 FACTS: Petitioners filed an ejectment action against respondents alleging: (1) that petitioners were the owners of the disputed lot, (2) that the respondents constructed a shanty thereon without their consent; (3) that the respondents have not been paying any rent for their occupation thereof; (4) and that the respondents refused the formal demand made by the petitioners for them to vacate the subject lot. Respondent Barro claims that he had a right to occupy the lot, as he was its caretaker. MeTC held for petitioners. CA reversed. HELD: The Court held that complaint for unlawful detainer was improper. The petitioners’ own averment in the complaint “that the defendant constructed a shanty in the lot of the plaintiffs without their consent,” and the relief asked for by the petitioners that the respondent and his wife “pay the amount of P10,000 a month beginning January 2004 as for reasonable rent of the subject premises,” clearly contradict their claim. No other conclusion can be made except that the petitioners had always considered respondent’s occupation of the same to be unlawful from the very beginning. “It is a settled rule that in order to justify an action for unlawful detainer, the owner’s permission or tolerance must be present at the beginning of the possession.” What the petitioners actually filed was a fatally defective complaint for forcible entry. HELD: In Tirona vs. Alejo, the Court held that “in actions for forcible entry, two allegations are mandatory for the municipal trial court to acquire jurisdiction: first, the plaintiff must allege his prior physical possession of the property; and second, he must also allege that he was deprived of his possession by any of the means provided for in Sec. 1, Rule 70 of the Rules of Court, namely, force, intimidation, threats, strategy, and stealth.” The petitioners’ allegation that they are the registered owners of the lot miserably falls short of satisfying the required averment of prior physical possession. Legal possession is NOT the same as actual prior physical possession. Barnachea vs. CA G.R. No. 150025. July 23, 2008 FACTS: The subject matter of the case were lots titled in respondent Avelino Ignacio’s name, which lots were adjacent to the property that the petitioners owned and occupied. These properties were originally part of a piece of land owned by Luis VOLUME 34 NUMBER 2 (OCTOBER 2009) 105 Eduardo A. Labitag Santos and subsequently inherited by his daughter. The land was subdivided and transferred to tenant-farmers Santiago Isidro and Procopio de Guzman. The property that the petitioners own and occupy was derived from the land transferred to Santiago Isidro. Respondent Ignacio’s properties were derived, on the other hand, from the land originally transferred to Procopio de Guzman. Respondents filed their complaint for ejectment against petitioners before the MTC on October 20, 1998. This was dismissed on December 8, 1999 but was revived on April 5, 2000. Meanwhile, On October 5, 2000, the petitioner Julita’s sister, Leticia, who was representing herself was the sole owner of the land, filed a Petition for Quieting of Title. ISSUES: (1) Whether or not the action was one of forcible entry (2) Whether or not the ejectment proceedings need to be suspended until resolution of ownership issue HELD: (1) No. The action was one of unlawful detainer. In this case, the Court found a complete absence of any allegation of force, intimidation, strategy or stealth in the complaint with respect to the petitioner’s possession of the respondent’s property. While admittedly no express contract existed between the parties regarding the petitioner’s possession, the absence does not signify an illegality in the entry nor an entry by force, intimidation, strategy or stealth that would characterize the entry as forcible. (2) As a rule, a pending civil action involving ownership of the same property will not justify the suspension of the ejectment proceedings. The ruling in Amagan vs. Marayag cannot be applied in this case. In Amagan, the party refusing to vacate the disputed premises was the same party seeking to quiet the title. In the present case, the petitioners were not parties to the civil action whose result they seek to await. The action to quiet title was filed by petitioner’s sister who claimed to be the sole owner of the property. Also, In Amagan, the MCTC decision involved the demolition of the petitioner’s house – a result that this Court found to be “permanent, unjust and probably irreparable”; in the present case, only a portion of the petitioner’s house is apparently affected as the petitioners occupy the lot adjoining the disputed property. C. Requisites of Recovery a. Identify the property b. Prove his right of ownership E. Tax declarations are good indicia of possession in the concept of an owner. 106 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Leoncio vs. De Vera G.R. No. 176842. February 18, 2008. [546 SCRA 180 (2008)] HELD: The Court reiterated the rule that while it is true that tax declarations or realty tax payments of property are not conclusive evidence of ownership, nevertheless, they are good indicia of possession in the concept of an owner, for no one in his right mind would be paying taxes for a property that is not in his actual or constructive possession. They constitute at least proof that the holder has a claim of title over the property. In this case, petitioners failed to overcome the burden of proving their main contention that Emilia owned the subject lot. III. Quieting of Title A . For an action to quiet title to prosper the requisites provided for in Article 476 and 477 of the New Civil Code must be met. Clado-Reyes vs. Limpe G.R. No. 163876. July 9, 2008 ISSUE: Whether the petitioners have a cause of action to quiet title, reconveyance and damages against respondents by simply alleging that their title is based on Sec. 5 of Art. XIII of the 1987 Constitution and Sec. 2 of the Comprehensive Agrarian Reform Law. HELD: The Court held that they had no cause of action. Under Article 476 and 477 of the New Civil Code, there are two indispensable requisites in order that an action to quiet title could prosper: (1) that the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of the action; and (2) that the deed, claim, encumbrance or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. To prove their case, petitioners merely cited Sec. 4 of Article XIII of the 1987 Constitution and Sec. 2 of the Comprehensive Agrarian Reform Law and stated that their title was founded upon these provisions. They hardly argued on the matter. Neither was there any positive evidence. A mere allegation is not evidence, and he who alleges has the burden of proving the allegation with the requisite quantum of evidence. The documents allegedly executed by Simeon I. Garcia are purely hearsay and have no probative value. B. An action for quieting of land title is not extinguished by death of the parties. VOLUME 34 NUMBER 2 (OCTOBER 2009) 107 Eduardo A. Labitag Saligumba vs. Palanog G.R. No. 143365.December 4, 2008 FACTS: Spouses Palanog alleged that they have been in actual, open, adverse and continuous possession as owners for more than 50 years of a parcel of land located in Solido, Nabas, Aklan. The spouses Saligumba allegedly prevented them from entering and residing on the subject premises and had destroyed the barbed wires enclosing the land. While the civil case was pending, spouses Saligumba died but were not substituted. Petitioners now claim that the ruling in the said civil case in favor of respondents be declared null and void. HELD: The Court held that this case involved an action for quieting of title with damages which is an action involving real property. It is an action that survives, pursuant to Sec. 1 of Rule 87, as the claim is not extinguished by the death of a party. Under the express terms of Sec. 17, in case of death of a party, and upon proper notice, it is the duty of the Court to order the legal representative or heir of the deceased to appear for the deceased. In the instant case, it is true that the trial court, after receiving an informal notice of death by the mere notation in the envelopes, failed to order the appearance of the legal representative or heir of the deceased. Neither did the respondent ever procure the appointment of such legal representative, nor did the heirs ever ask to be substituted. However, in this case, the petitioners failed to show their interest in the case, they should have questioned immediately the validity of the proceedings absent any formal substitution. Despite the court’s alleged lack of jurisdiction over the persons of petitioners, petitioners never bothered to challenge the same, and in fact allowed the proceedings to go on until the trial court rendered its decision. Hence, their petition failed. Note: Sec. 1, Rule 87 of the Revised Rules of Court provides: “SEC. 1. Actions which may and which may not be brought against executor or administrator. - No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.” The spouses Saligumba died before the effectivity of the 1997 Rules on Civil Procedure. Sec. 17, Rule 3 of the Rules of Court was amended and it is now Sec. 16, Rule 3 of the 1997 Rules on Civil Procedure. 108 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration IV. Co-Ownership A. Rights of each co-owner as to the thing in common: 1. Use the thing as to the purpose intended 2. Share in the benefits in proportion to his interest 3. Bring an action in ejectment A . No condominium unit can be sold without at the same time selling the corresponding amount of rights, shares or other interests in the condominium management body, the Condominium Corporation; and no one can buy shares in a Condominium Corporation without at the same time buying a condominium unit. RA No. 4726 allows foreigners to acquire condominium units and shares in condominium corporations up to not more than 40% of the total and outstanding capital stock of a Filipinoowned or controlled corporation. Hulst vs. PR Builders G.R. No. 156364. September 25, 2008. [566 SCRA 333 (2008)] FACTS: Petitioner filed the present Motion for Partial Reconsideration insofar as he was ordered to return to respondent the amount of P2,125,540 in excess of the proceeds of the auction sale delivered to petitioner. Petitioner contended that the Contract to Sell between petitioner and respondent involved a condominium unit and did not violate the Constitutional proscription against ownership of land by aliens. He argued that the contract to sell will not transfer certificate of title but merely a Condominium Certificate of Title as evidence of ownership; a perusal of the contract show that what the buyer acquires is the seller’s title and rights to and interests in the unit and the common areas. HELD: Under Republic Act No. 4726, otherwise known as the Condominium Act, foreign nationals can own Philippine real estate through the purchase of condominium units or townhouses constituted under the Condominium principle with Condominium Certificates of Title. Sec. 5 of RA No. 4726 states: “Sec. 5. Any transfer or conveyance of a unit or an apartment, office, or store or other space therein, shall include the transfer or conveyance of the undivided interest in the common areas or, in a proper case, the membership or shareholdings in the condominium corporation; Provided, however, That were the common areas in the condominium project are held by the owners of separate units as co-owners thereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens or corporations at least 60% of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession. Where the VOLUME 34 NUMBER 2 (OCTOBER 2009) 109 Eduardo A. Labitag common areas in a condominium project are held by a corporation, no transfer or conveyance of a unit shall be valid if the concomitant transfer of the appurtenant membership or stockholding in the corporation will cause the alien interest in such corporation to exceed the limits imposed by existing laws.” The law provides that no condominium unit can be sold without at the same time selling the corresponding amount of rights, shares or other interests in the condominium management body, the Condominium Corporation; and no one can buy shares in a Condominium Corporation without at the same time buying a condominium unit. It expressly allows foreigners to acquire condominium units and shares in condominium corporations up to not more than 40% of the total and outstanding capital stock of a Filipino-owned or controlled corporation. Under this set up, the ownership of the land is legally separated from the unit itself. The land is owned by a Condominium Corporation and the unit owner is simply a member in this Condominium Corporation. As long as 60% of the members of this Condominium Corporation are Filipino, the remaining members can be foreigners. B. A co-owner may bring an action for the recovery of possession without the necessity of joining all the other co-owners as coplaintiffs. Wee vs. De Castro G.R. 176405. August 20, 2008. [562 SCRA 695 (2008)] HELD: In this case, the Court reiterated the rule that a co-owner may bring an action for the recovery of possession without the necessity of joining all the other co-owners as co-plaintiffs. The reason is that the action is deemed to be instituted for the benefit of all. The Court also stated that Art. 487, which states that “[A]ny one of the co-owners may bring an action in ejectment,” covers all kinds of action for the recovery of possession, i.e., forcible entry and unlawful detainer (accion interdictal), recovery of possession (accion publiciana), and recovery of ownership (accion de reinvicatoria). 4. Compel other co-owner to contribute to expenses for preservation of the thing 5. Oppose any act of alteration C . Giving consent to a third person to construct a house on the coowned property without the consent of the other co-owners is tantamount to devoting the common property to his/her exclusive use to the prejudice of the co-ownership. This is in violation of Art. 486 and Art. 491 of the Civil Code. 110 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Cruz vs. Catapang G.R. No. 164110. February 12, 2008. [544 SCRA 512 (2008)] FACTS: Leonor Cruz, Luz Cruz and Norma Maligaya are the co-owners of a 1435 sq. m. parcel of land in Taal, Batangas. With the consent of Norma, respondent Teofila Catapang built a house on a lot adjacent to the subject parcel of land in 1992. The house intruded, however, on a portion of the co-owned property. In 1995, petitioner Leonor Cruz visited the property and was surprised to see a part of respondent’s house intruding unto a portion of the co-owned property. She then made several demands upon respondent to demolish the intruding structure and to vacate the portion encroaching on their property, to no avail. Petitioner filed a complaint for forcible entry against respondent. At issue before the Court is whether the consent given by a co-owner of a parcel of land to a person to construct a house on the co-owned property warrants the dismissal of a forcible entry case filed by another co-owner against that person. HELD: The Court held that a co-owner cannot devote common property to his/her exclusive use to the prejudice of the co-ownership, in violation of Articles 486 and 491 of the Civil Code. The consent given by Norma Maligaya in the absence of the unanimous consent of the other co-owners did not vest upon respondent any right to enter into the co-owned property. Respondent’s entry into the property still fell under the classification “through strategy or stealth.” Entry into the land effected clandestinely without the knowledge of the other co-owners could be categorized as possession by stealth. Moreover, respondent’s act of getting only the consent of one co-owner, her sister Norma Maligaya, and allowing the latter to stay in the constructed house, can in fact be considered as a strategy which she utilized in order to enter into the co-owned property. 6. Protest against acts of majority which are prejudicial to minority 7. Exercise legal redemption 8. Ask for partition D. Assignees of a co-owner who do not exercise the rights afforded to them by Art. 497 of the Civil Code during the partition of the property owned in common are bound by the final and executory decision of the court as regards the partition of such proper ty. Panganiban vs. Oamil G.R. No. 14931. January 22, 2008. [542 SCRA 166 (2008)] HELD: Under a co-ownership, the ownership of an undivided thing or right belongs to different persons. During the existence of the co-ownership, no individual can claim title to any definite portion of the community property until the partition VOLUME 34 NUMBER 2 (OCTOBER 2009) 111 Eduardo A. Labitag thereof; and prior to the partition, all that the co-owner has is an ideal or abstract quota or proportionate share in the entire land or thing. Before partition in a coownership, every co-owner has the absolute ownership of his undivided interest in the common property. The co-owner is free to alienate, assign, or mortgage this undivided interest, except as to purely personal rights. The effect of such transfer is limited to the portion which may be awarded to him upon partition of the property. Under Art. 497 of the Civil Code, in the event of a division or partition of property owned in common, assignees of one or more of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there had been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity. E . Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed. Quimpo, Sr. vs. Abad Vda. de Beltran G.R. No. 16095. February 13, 2008. [545 SCRA 174 (2008)] FACTS: Estaquia Perfecto-Abad was the owner of several parcels of land in Goa, Camarines Sur. When she died, her grandchildren, Joaquin Quimpo and the respondents, inherited the parcels of land. In 1966, petitioner and respondents undertook an oral partition of parcel III (San Jose Property) and parcel IV. Half of the properties were given to petitioner and the other half to the respondent. Two of the respondents occupied their respective shares in the San Jose property and installed their tenants over their share in parcel IV. Joaquin, on the other hand, became the administrator of the remaining undivided properties and of the shares of respondents Danilo, Marites, Anita and Helen, who were still minors at that time. In 1989 Danilo, Marites, Anita and Helen wanted to take possession of the portions allotted to them, but petitioner prevented them from occupying the same. Petitioner also refused to heed respondent’s demand for partition of parcels I and II, prompting respondents to file a complaint for judicial partition and/or recovery of possession with accounting and damages with the RTC of Camarines Sur. HELD: The Court noted that for forty-three (43) years, Consuelo and Ireneo occupied their portions of the San Jose property and petitioner never disturbed their possession. They also installed tenants in parcel IV, and petitioner did not prevent them from doing so, nor did he assert his ownership over the same. These unerringly point to the fact that there was indeed an oral partition of parcels III and IV. In Maglucot-Aw vs. Maglucot, [329 SCRA 78 (2000)], it was held that “[p]artition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed. It has been held that recitals in deeds, possession and occupation of land, improvements 112 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and not recorded.” Furthermore, in Hernandez vs. Andal [78 Phil. 196 (1947)], the Court explained that: “…parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to and enforce the partition agreed by the parties.” The Court held that respondents can rightfully ask for the confirmation of the oral partition over parcels III and IV, and the partition of parcels I and II. Jurisprudence is replete with rulings that any co-owner may demand at any time the partition of the common property unless a co-owner has repudiated the co-ownership. This action for partition does not prescribe and is not subject to laches. V. In an action for partition, all other persons interested in the property shall be joined as defendants, as an action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. Heirs of Panfilo F. Abalos vs. Bucal G.R. No. 156224. February 19, 2008. [546 SCRA 252 (2008)] HELD: The Rules of Court provides that in an action for partition all other persons interested in the property shall be joined as defendants. Not only the coheirs but also all persons claiming interests or rights in the property subject of partition are indispensable parties. Here, it is the responsibility of plaintiff to implead all indispensable parties, including respondents in their capacities as vendees and donees of the subject fishponds. Without their presence in the suit the judgment of the court cannot attain real finality against them. Being strangers to the first case, VOLUME 34 NUMBER 2 (OCTOBER 2009) 113 Eduardo A. Labitag they are not bound by the decision rendered therein; otherwise, they would be deprived of their constitutional right to due process. VI. Possession A . Provisional resolution of ownership by Municipal Trial Courts in Cities is for the sole purpose of determining issue of possession in Actions for Ejectment. Villadar, Jr. vs. Zabala G.R. No. 166458. February 14, 2008. [545 SCRA 325 (2008)] HELD: Where the issue of possession in an unlawful detainer suit is closely intertwined with the issue of ownership, as in this case, the MTCC can provisionally resolve the issue of ownership for the sole purpose of determining the issue of possession. The judgment, however, is not conclusive in any action involving title or ownership and will not bar an action between the same parties respecting title to the land or building. Aquino vs. Aure G.R. No. 153567. February 18, 2008. [546 SCRA 71 (2008)] HELD: The Court held that jurisdiction in ejectment cases is determined by the allegations pleaded in the complaint. As long as these allegations demonstrate a cause of action either for forcible entry or for unlawful detainer, the court acquires jurisdiction over the subject matter. This principle holds, even if the facts proved during the trial do not support the cause of action thus alleged, in which instance the court – after acquiring jurisdiction – may resolve to dismiss the action for insufficiency of evidence. An adjudication in an inferior court regarding the issue of ownership should be regarded as merely provisional and, therefore, would not bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real party, that is, possession de facto and not possession de jure. In other words, inferior courts are now conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in an ejectment suit. These courts shall resolve the question of ownership raised as an incident in an ejectment case where a determination thereof is necessary for a proper and complete adjudication of the issue of possession. B. The barangay conciliation process is not a jurisdictional requirement in an ejectment suit; but non-recourse thereto should be pleaded in the Answer in order that the case may be dismissed. 114 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Aquino vs. Aure G.R. No. 153567. February 18, 2008. [546 SCRA 71 (2008)] ISSUE: Whether non-recourse to barangay conciliation process is a jurisdictional flaw that would warrant dismissal of the ejectment suit. HELD: The Court ruled that it is not a jurisdictional defect. It is true that precise technical effect of failure to comply with the requirement of Sec. 412 of the Local Government Code on barangay conciliation (previously contained in Sec. 5 of Presidential Decree No. 1508) is much the same effect produced by non-exhaustion of administrative remedies – the complaint becomes afflicted with the vice of prematurity; and the controversy there alleged is not ripe for judicial determination. The complaint becomes vulnerable to a motion to dismiss. Nevertheless, the conciliation process is not a jurisdictional requirement, so that noncompliance therewith cannot affect the jurisdiction which the court has otherwise acquired over the subject matter or over the person of the defendant. By Aquino’s failure to seasonable object to the deficiency in the Complaint, she is deemed to have already acquiesced to or waived any defect attendant thereto. The fact that Aquino raised such objection during the pretrial and in her Position Paper is of no moment, for the issue of non-recourse to barangay mediation proceedings should have been impleaded in her Answer. Neither could the MeTC dismiss Civil Case No. 17450 motu proprio. The 1997 Rules of Civil Procedure provide only three instances when the court may motu proprio dismiss the claim. VII. Easements and Servitudes A. Legal Easements A. Requisites of Legal Easements were enumerated. Valdez vs. Tabisula G.R. No. 175510. July 28, 2008. [560 SCRA 332 (2008)] FACTS: Petitioners-spouses Victor and Jocelyn Valdez purchased from respondent-spouses Francisco and Caridad Tabisula a 200 sq. m. portion of a 380 sq. m. parcel of land located in San Fernando, La Union. Respondents subsequently built a concrete wall on the western side of the subject property. Petitioners then filed in April 1999, more than six years after the execution of the deed a Complaint for Specific Performance with Damages against respondents. In their complaint, petitioners alleged that they purchased the subject property on the strength of respondents’ assurance of providing them a road right of way. They then prayed that respondents be ordered to provide the subject property with a 2 ½-meter wide easement and to remove the concrete wall blocking the same. VOLUME 34 NUMBER 2 (OCTOBER 2009) 115 Eduardo A. Labitag HELD: The Court held that an easement or servitude is “a real right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.” The statutory basis of this right is Article 613 of the Civil Code. Article 1358 of the Civil Code provides that any transaction involving the sale or disposition of real property must be in writing. The stipulation harped upon by petitioners was not a disposition of real property. The proviso that the intended grant of right of way was “not included in this sale” only meant that the parties had to enter into a separate and distinct agreement for that purpose. The use of the word “shall,” which is imperative or mandatory in its ordinary signification, should be construed as merely permissive where, as in the case at bar, no public benefit or private right require it to be given an imperative meaning. Besides, a document stipulating a voluntary easement must be recorded in the Registry of Property in order not to prejudice third parties as provided for in Articles 798 and 709 of the Civil Code. Petitioners were neither entitled to a legal or compulsory easement of right of way. For to be entitled to such kind of easement, the preconditions under Articles 649 and 650 of the Civil Code must be established, viz.: “Art. 649. The owner, or nay person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons, and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. xxx Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.” Thus, to be conferred a legal easement of right of way under Article 649, the following requisites must be complied with: (1) the property is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity must be paid; (3) the isolation is not the result of the owner of the dominant estate’s own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, the distance from the dominant estate to a public highway may be the shortest. The onus of proving the existence of these prerequisites lies on the owner of the dominant estate, herein petitioners. Since petitioners had more than adequate passage to two public roads, they had no right to demand the grant by respondents of an easement on the western side of respondent’s lot. 116 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration B. The criterion of least prejudice to the servient estate must prevail over the shortest distance. Quintanilla vs. Abangan G.R. No. 160613. February 12, 2008. [544 SCRA 494 (2008)] HELD: Petitioners Apolinardito and Perfecta Quintanilla owned a corporation engaged in the manufacture and export of rattan-made furniture. In the conduct of their business, they used vans to haul and transport raw materials and finished products. Because they wanted to expand their business and construct a warehouse on their property (the dominant estate), they asked for a right of way from Pedro sometime in April 1994. However, Pedro had already sold his lot to DARYL’S on March 24, 1994. Thereafter DARYL’S constructed a warehouse over the servient estate, enclosing the same with a concrete fence. Petitioner, thus, sought the imposition of an easement of right of way, six meters in width, or a total area of 244 square meters, over the servient estate. HELD: The Court held that the petitioners failed to discharge the burden of proving the existence and concurrence of all the requisites in order to validly claim a compulsory right of way against respondents. It should be remembered that to be entitled to a legal easement of right of way, the following requisites must be satisfied: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to the acts of the proprietor of the dominant estate; and (4) the right of way claimed is at the point least prejudicial to the servient estate. Here, the fourth requisite is absent. The Court quoted with approval the findings of the CA, to wit: “As provided for under the provisions of Article 650 of the New Civil Code, the easement of right of way shall be established at the point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. Where there are several tenements surrounding the dominant estate, and the easement may be established on any of them, the one where the way is shortest and will cause the least damage should be chosen. But if these two circumstances do not concur in a single tenement, as in the instant case, the way which will cause the least damage should be used, even if it will not be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of the shortest distance. The court is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constructions or walls which can be avoided by a round-about way… Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement, the same should not be imposed.” VOLUME 34 NUMBER 2 (OCTOBER 2009) 117 Eduardo A. Labitag VIII. Land Titles and Deeds A. Registration of Title A . Three requisites for the filing of an application for registration of title were enumerated. Republic vs. Diloy G.R. No. 174633. August 26, 2008. [563 SCRA 413 (2008)] FACTS: As early as 1948, Crispin Leaban had already declared the subject property for taxation purposes under his name. He was then succeeded by his son who filed tax declarations in his name from period 1951-1969. Thereafter, in 1974, the subject property was transferred to Eusebio Leaban’s daughter, Pacencia Laban, who also declared the property for taxation purposes under her name. On June 15, 1979, the subject property was then conveyed by Pacencia to her daughter, respondent in this case, Gregoria Diloy. In 1997, Diloy filed an Application for Registration of Title over the subject property under Sec. 14 of PD No. 1529 before the MCTC of Silang, Cavite. The Republic opposed the application for registration of respondent alleging that the latter failed to prove her possession as required under PD 1529. The issue raised in this petition is whether or not the respondent had acquired a registrable title. HELD: The Court held that respondent had acquired registrable title. Under Sec. 14 of the Property Registration Decree, the three requisites for the filing of an application for registration of title under the first category are: (1) that the property in question is alienable and disposable land of the public domain; (2) that the applicants by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation; and (3) that such possession is under a bona fide claim of ownership since 12 June 1945 or earlier. In effect, the period of possession – open, continuous, exclusive and notorious – must at least be 30 years computed from 12 June 1945 to the effectivity of PD 1529 on 11 June 1978. Sec. 14(1) of the aforesaid law requires that the property sought to be registered is already alienable and disposable at the time the application for registration of title is filed. In the case at bar, it is beyond question that the subject property was already an alienable and disposable land at the time the Application for Registration of Title over the same was filed by the respondent Ong vs. Republic G.R. No. 175746. March 12, 2008. [548 SCRA 160 (2008)] HELD: The Court in this case cited Sec. 14(1) of P.D. 1529 (Property Registration Decree) as amended, which provides – “SEC. 14. Who may apply. – The following persons may file in the property 118 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration CFI an application for registration of title to land, whether personally or through their duly authorized representatives: (1) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable land of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier.” Thus, pursuant to the aforequoted provision of law, applicants for registration of title must prove: (1) that the subject land forms part of the disposable and alienable land of the public domain, and (2) that they have been in open, continuous, exclusive and notorious possession and occupation of the same under a bona fide claim of ownership since June 12, 1945, or earlier. These requirements involve questions of fact which are not proper in a petition for review on certiorari. Moreover, petitioner failed to prove that he or his predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of the subject lot since June 12, 1945 or earlier. Further, possession alone is not sufficient to acquire title to alienable lands of the public domain because the law requires possession and occupation. B. The onus to overturn the presumption that the land subject of an application for registration is alienable and disposable rests with the applicant. Republic vs. T.A.N. Properties, Inc. G.R. No. 154953. June 26, 2008. [555 SCRA 477 (2008)] HELD: The Court stated the well-entrenched rule that all lands not appearing to be clearly of private dominion presumably belong to the State. The onus to overturn, by incontrovertible evidence, the presumption that the land subject of an application for registration is alienable and disposable rests with the applicant. Furthermore, it ruled that it is not enough for PENRO (Provincial Environment and Natural Resources Offices) and CENRO (Community Environment and Natural Resources Offices) to certify that a land is alienable and disposable. The applicant for land registration must prove that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area per verification through survey by the PENRO or CENRO. In addition, the applicant for land registration must present a copy of the original classification approved by the DENR Secretary and certified as a true copy by the legal custodian of the official records. These facts must be established to prove that the land is alienable and disposable. Respondent failed to do so because the certifications presented by respondent do not, by themselves, prove that the land is alienable and disposable. VOLUME 34 NUMBER 2 (OCTOBER 2009) 119 Eduardo A. Labitag C . The Principle of Indefeasibility of Title was reiterated. Caña vs. Evangelical Free Church of the Phils. G.R. No. 157573. February 11, 2008. [544 SCRA 225 (2008)] HELD: The Court stated that respondent’s title over the property was evidence of its ownership thereof. It was a fundamental principle in land registration that the certificate of title serves as evidence of an indefeasible and incontrovertible title to the property in favor of the person whose name appears therein. Moreover, the age-old rule is that the person who has a Torrens Title over a land is entitled to possession thereof. D. A title procured by fraud or misrepresentation can still be the source of a completely legal and valid title if the same is in the hands of an innocent purchaser for value. Heirs of Tiro vs. PES G.R. No. 170528. August 26, 2008. [563 SCRA 309 (2008)] HELD: The Court held that a person is considered in law as an innocent purchaser for value when he buys the property of another, without notice that some other person has a right or an interest in such property, and pays a full price for the same at the time of such purchase, or before he has notice of the claims or interest of some other person in the property. A person dealing with registered land may safely rely on the correctness of the certificate of title of the vendor/transferor, and the law will in no way oblige him to go behind the certificate to determine the condition of the property. The courts cannot disregard the rights of innocent third persons, for that would impair or erode public confidence in the Torrens system of land registration. Thus, a title procured by fraud or misrepresentation can still be the source of a completely legal and valid title if the same is in the hands of an innocent purchaser for value. E . It is a well-settled doctrine that a certificate of title cannot be subject to collateral attack and can be altered, modified, or cancelled only in a direct proceeding in accordance with law. Heirs of Sps. Lim vs. RTC Judge of Quezon City G.R. No. 173891. September 8, 2008. (564 SCRA 352) FACTS: Canosa filed a petition for reconstitution of the original TCT of a parcel of land, to which the trial court granted. The heirs of Lim opposed such claiming that their parents were the registered owners and were in actual physical possession of the land. They continued possession after the death of their parents. They claimed that no records existed in the QC Assessor’s Office or in the Taxation Division of the ownership of Canosa. On the other hand, Canosa claimed that the title issued to the spouses Lim emanated from a spurious private subdivision plan. 120 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration HELD: Both parties raised issues of ownership and the validity of the parties’ respective titles were being attacked in a proceeding which was brought merely to seek nullification of an order of reconstitution. This cannot be allowed. The Court reiterated the well-settled doctrine that a certificate of title cannot be subject to collateral attack and can be altered, modified, or cancelled only in a direct proceeding in accordance with law. F. The act of registration shall be the operative act to convey or affect the land in so far as third persons are concerned. Republic vs. Ravelo G.R. No. 165114. August 6, 2008. [561 SCRA 204 (2008)] ISSUE: The issue raised was whether the act of registration affected third persons with respect to the perfected sale. HELD: The CA approached the issue of good faith based mainly on its view that there had been a perfected sale prior to the annotation of the notice of lis pendens. The Court held that the approach adopted by the appellate court was simplistic as it disregards, among others, the nature of a sale of registered real property, as well as other material and undisputed developments in the case. For example, while the appellate court was correct in its general statement about the perfection of a contract of sale, it did not take into account that the subject matter of the sale was a registered land to which special rules apply in addition to the general rules on sales under the Civil Code. Sec. 51 of PD No. 1529 which governs conveyances of registered lands provides: “Sec. 51. Conveyance and other dealings by registered owner. – An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instrument as are sufficient in law. But no deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land in so far as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies.” G. The act of registration is the operative act to convey or affect the land insofar as third persons are concerned. VOLUME 34 NUMBER 2 (OCTOBER 2009) 121 Eduardo A. Labitag AFP-MBA, Inc. vs. Santiago G.R. No. 147559. June 27, 2008. [556 SCRA 46 (2008)] HELD: The Court restated Levin vs. Bass [91 Phil. 420 (1952)] which provided the distinction between voluntary registration and involuntary registration. In voluntary registration, such as a sale, mortgage, lease and the like, if the owner’s duplicate certificate be not surrendered and presented or if no payment of registration fees be made within fifteen (15) days, entry in the day book of the deed of sale does not operate to convey and affect the land sold. In involuntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof in the day book is a sufficient notice to all persons of such adverse claim. Secs. 51 and 52 of the Property Registration Decree (Presidential Decree [P.D.] 1529) provide: “SEC. 51. Conveyance and other dealings by registered owner. – An owner of registered land may convey, mortgage, lease, charge or otherwise deal with same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Registry of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies. SEC. 52. Constructive notice upon registration. – Every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.” Under the aforequoted provisions, the act of registration is the operative act to convey or affect the land insofar as the third persons are concerned. Constructive notice is also created upon registration of every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land. It must be noted that the computation of the prescriptive period of any cause of action starts from the date when the cause of action accrues. Written acknowledgment and assumption of the mortgage obligation had the effect of interrupting the prescriptive period of the mortgage action. 122 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration H. Ownership and possession are two entirely different legal concepts. Heirs of Arcilla vs. Teodoro G.R. No. 162886. August 11, 2008. [561 SCRA 545 (2008)] HELD: The Court held that petitioners’ physical occupation commercial building which they erected on the disputed property does not necessarily prove their ownership of the subject lots. In Tating vs. Marcela [G.R. No. 155208], the Court held that: “Ownership and possession entirely different legal concepts. Just as possession is not a definite proof of ownership, neither is non-possession inconsistent with ownership. The first paragraph of Art. 1498 of the Civil Code states that when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred. Possession, along with ownership, is transferred to the vendee by virtue of the notarized deed of conveyance.” B. Indefeasibility of Torrens Title I . A certificate of title issued on the basis of a free patent procured through fraud or in violation of the law may be cancelled since such title is not cloaked with indefeasibility. Martinez vs. CA G.R. No. 170409. January 28, 2008. [542 SCRA 604 (2008)] FACTS: Gregoria Martinez, a descendant of Celedonia Martinez (the greatgrandmother of herein private respondents) applied for free patents over the subject parcels of land. The OCTs were thereafter issued in her name. When private respondents, as heirs of Melanio Medina Sr., the latter being a son and heir of Rosa Martinez Ermitaño, daughter of Celedonia Martinez herself, filed an application of land registration over the subject properties. Gregoria opposed. This impelled the private respondents to file this complaint. The RTC found that Merquines employed fraud and misrepresentation in her free patent applications by pretending and claiming that she is Gregoria Martinez and thus an heir of Celedonia when in fact her real surname was neither Martinez nor was she related to Celedonia Martinez. However, the trial court said that notwithstanding the misrepresentation of Gregoria, private respondents were not necessarily entitled to the automatic reconveyance of the subject lots. In the decision, the cancellation of the OCTs issued in the name of Gregoria Martinez (Merquines) was ordered. The CA affirmed. VOLUME 34 NUMBER 2 (OCTOBER 2009) 123 Eduardo A. Labitag HELD: The Court held that it is well settled that a certificate of title issued on the basis of a free patent procured through fraud or in violation of the law may be cancelled, as such title is not cloaked with indefeasibility. In other words, the principle of indefeasibility of title is unavailing where fraud attended the issuance of the free patents and titles. Then, the Court reiterated the rule that public lands suitable for agricultural purposes can be disposed of only by homestead patent, sale, lease, judicial confirmation of imperfect or incomplete titles, and administrative legalization or free patent. One claiming private rights as basis of ownership must prove compliance with the Public Land Act. When the conditions specified in Sec. 48(b) of the Public Land Act are complied with, the possessor is deemed to have acquired, by operation of law, a right to a grant, without the necessity of a certificate of title being issued. The land, therefore, ceased to be of the public domain, and beyond the authority of the director of lands to dispose of. The application for confirmation is a mere formality, the lack of which does not affect the legal sufficiency of the title as would be evidenced by the patent and the Torrens title to be issued upon the strength of said patent. Eagle Realty Corporation vs. Republic G.R. No. 151424. July 24, 2008 FACTS: Casiano and Maria De Leon applied for registration of Lots 1 and 2, located at Barrio San Dionisio, Parañaque, Rizal. The Heirs of Dionisio Tomas, inter alia, opposed. Nonetheless, the CFI granted the application. However, it appeared that another decision similar to the De Leon decision but adjudicating the property to a certain Martina Medina, who was the alleged intervenor in LRC Case No. N4140, was surreptitiously inserted in the records of the LRC. Likewise inserted in the records of the LRC was the Order for the Issuance of the Decree. On May, 1983, pursuant to these documents, the acting Land Registration Commissioner issued a decree of registration in the name of Martina Medina. Subsequently, she exchanged the property for another property owned by Pilarita Reyes. Thn, Reyes sold the property to petitioner Eagle Realty Corp. Later, it was found out that the Medina Decision and the Order of Issuance of Decree were fake. Hence, this complaint was filed. For its part, petitioner Eagle Realty Corporation alleged, among other things, that the one-year prescriptive period within which to seek review of a decree of registration has already lapsed. Also, it claimed to be a buyer in good faith. HELD: The Court held that the principle of indefeasibility of a Torrens title does not apply were fraud attended the issuance of the title. The Torrens title does not furnish a shield for fraud. As such, a title issued based on void documents may be annulled. Moreover, elementary is the rule that prescription does not run against the State and its subdivisions. He who alleges that he is a purchaser in good faith and for value of registered land bears the onus of proving such statement. This burden is not discharged by 124 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration involving the ordinary presumption of good faith. Petitioner failed to discharge this burden. It did not present any proof that would substantiate this allegation nor did it present any evidence to show that it took other steps to verify the authenticity of its predecessor’s title. Indeed, the general rule is that a purchaser may rely on what appears on the face of a certificate of title. He may be considered a purchaser in good faith even if he simply examines the latest certificate of title. An exception to this rule is when there exist important facts that would create suspicion in an otherwise reasonable man to go beyond the present title and to investigate those that preceded it. The property covered by the void titles was transferred from Medina to petitioner with unusual haste. The property was transferred to petitioner from Reyes only more than five months after she herself acquired the property. These circumstances, plus the fact that the subject property was a vast tract of land in a prime location, should have, at the very least, triggered petitioner’s curiosity. Moreover, petitioner is a corporation engaged in the real estate business. A corporation engaged in the buying and selling of real estate is expected to exercise a higher standard of care and diligence in ascertaining the status and condition of the property subject of its business transaction. J. The principle of indefeasibility of title does not apply when the patent and the title based thereon were null and void. De Guzman vs. Agbagala G.R. No. 163566. February 19, 2008. [546 SCRA 278 (2008)] HELD: The Court held that a decree of registration or patent and the certificate of title pursuant thereto may be attacked on the ground of falsification or fraud within one year from the date of their issuance. Such an attack must be direct and not by a collateral proceeding. The rationale, as held in Ingusan vs. Heirs of Reyes [531 SCRA 315 (2007)], is that “the public should be able to rely on a registered title. The Torrens System was adopted in this country because it was believed to the most effective measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized.” Furthermore, the Court stated that the principle of indefeasibility does not apply when the patent and the title based thereon are null and void. Since the Director of Lands had no authority to grant a free patent over privately owned land, any title issued pursuant thereto was null and void. Therefore, although OCT No. P-30187 was merely collaterally attacked, it was still correctly nullified because the free patent on which it was based was null and void ab initio. C. Writ of Possession K . A petition for a writ of possession is ex parte and summary in nature. VOLUME 34 NUMBER 2 (OCTOBER 2009) 125 Eduardo A. Labitag Lam vs. Metrobank G.R. No. 178881. February 18, 2008. [546 SCRA 200 (2008)] HELD: The Court explained the nature of a writ of possession. A petition for a writ of possession is ex parte and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without notice by the court to any person having any adverse interest. Relief is granted without giving the person against whom the relief is sought an opportunity to be heard. By its very nature, an ex parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act no. 3135, as amended. It is not strictly speaking a judicial process as contemplated in Art. 433 of the Civil Code. It is a judicial proceeding for the enforcement of one’s right of possession as purchaser in a foreclosure sale. It is not an ordinary suit filed in court. The law does not require that a petition for a writ of possession may be granted only after documentary and testimonial evidence shall have been offered to and admitted by the court. As long as a verified petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue the writ prayed for. L. A person who took possession of a parcel of land after final adjudication of the same in registration proceedings cannot be summarily ousted through a writ of possession secured by a mere motion. Factor vs. Martel, Jr. G.R. No. 161037. February 4, 2008. [543 SCRA 549 (2008)] FACTS: Benito Lopez was the registered owner of a parcel of land at Barrio Almanza, Las Piñas City. Lopez sold the land to Antonio Martel, Jr. for P75 M. The latter had the land subdivided into five lots. Later, Martel Jr. learned of a Decision dated December 1994 of the Pasig RTC which granted an application for registration and confirmation of title to parcels of land in an LRC case which was filed by heirs of Ricardo and Narciso Factor. Their claim was based on possession since time immemorial of lands, among which was a lot from which the title of Benito Lopez emanated. Benito Lopez and Pepito Ng then filed a motion for leave to admit petition to reopen and review the decree of registration. The Pasig RTC reversed its earlier Order. On the strength of this ruling, Martel Jr. filed an ex parte petition for the issuance of a writ of possession over the two lots. The RTC denied the relief but upon Motion for Reconsideration, granted the resolution. The CA affirmed. HELD: It is well-established that a writ of possession may be issued only pursuant to a decree of registration in original land registration proceedings not only against the person who has been defeated in a registration case but also against anyone adversely occupying the land or any portion thereof during the proceedings up to the issuance of the decree. Also, it is a well settled rule that when parties against whom a writ of possession is sought to have been in possession of the land 126 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration for at least 10 years, and they entered into possession apparently after the issuance of the final decree, and none of them had been a party to the registration proceedings, the writ of possession will not issue. A person who took possession of the land after final adjudication of the same in registration proceedings cannot be summarily ousted through a writ of possession secured by a mere motion. Regardless of any title or lack of title of persons to hold possession of the land in question, they cannot be ousted without giving them their day in court in the proper independent proceedings. In this case, petitioners applied for registration and confirmation of the land long after the decree of registration to the same was issued in 1905. Neither were petitioners parties to the original registration case. Clearly, they are not the adverse occupants contemplated by law against whom a writ of possession may be enforced. Pending the final outcome of the land registration case, the only remedy by which respondent can take possession of the lots is through an accion reinvicatoria (sic – should be reinvicatoria) against the petitioners. This is so because a writ of possession cannot issue against possessors who claim ownership. Actual possession under claim of ownership raises a disputable presumption of ownership and the true owner must resort to judicial process for the recovery of the property, not summarily through a motion for the issuance of a writ of possession. D. Reconstitution of Title M . It is not the ministerial function of the Register of Deeds to record a right or an interest that was not duly noted in the reconstituted certificate of title – the responsibility is lodged by law to the proper court. The Phil. Cotton Corp. vs. Gagoomal and Ang G.R. No. 130389. February 11, 2008. [544 SCRA 185(2008)] HELD: A special law specifically deals with the procedure for the reconstitution of Torrens certificates of title, either lost or destroyed. Under Sec. 4 of Act. No. 26, liens and other encumbrances affecting a destroyed or lost certificate of title shall be reconstituted from such of the sources hereunder enumerated as may be available, in the following order: (a) Annotations or memoranda appearing on the owner’s, coowner’s, mortgagee’s or lessee’s duplicate; (b) Registered documents on file in the registry of deeds, or authenticated copies thereof showing that the originals thereof had been registered; and (c) Any other document which, in the judgment of the court, is sufficient and proper basis for reconstituting liens or encumbrances affecting the property covered by the lost or destroyed certificate of title. Furthermore, Secs. 8 and 11 of the same Act provide for the procedure for the notation of an interest that did not appear in the reconstituted certificate of title, mandating that a petition be filed before a court of competent jurisdiction. Therefore, it is not the ministerial function of the Register of Deeds to record a right or an interest that was not duly noted in the reconstituted certificate of title. VOLUME 34 NUMBER 2 (OCTOBER 2009) 127 Eduardo A. Labitag The foregoing quoted provisions of the law leave neither question nor any doubt that it is indeed the duty of the trial court to determine the merits of the petition and render judgment as justice and equity may require. Even the contentions that the Register of Deeds may “validly re-annotate the encumbrance/liens and annotate the Court decision on the administratively reconstituted transfer certificates of titles” have no basis in law and in jurisprudence. N. Reconstitution of Titles – RA 26 presupposes that the property whose title is sought to be reconstituted had already been brought under the provisions of the Torrens System. Pascua vs. Republic G.R. No. 162097. February 13, 2008. [545 SCRA 186 (2008)] HELD: In Republic vs. IAC [157 SCRA 62 (1988)], it was held that when RA 26, Sec. 20 speaks of “any other document”, the reference is to similar documents previously enumerated in the Sec. or documents ejusdem generis as the documents earlier referred to. RA 26 presupposes that the property whose title is sought to be reconstituted has already been brought under the provisions of the Torrens System, Act. No. 496. Petitioner’s evidence itself, the Deed of Sale between Limuaco and petitioner’s parents, stated that the lot was not registered under Act. No. 496 and that the parties agreed to register it under Act No. 3344. Even the Deed of Coowner’s partition stated that the subject lot, Lot No. 19-pt., was not registered. The other piece of evidence, the certifications from the LRA, merely stated that the Decree No. 412846 covering Lot No. 3209 was issued on December 4, 1930, but the copy of said decree was not among the salvaged decrees on file with said office. The said copy was presumed lost or destroyed during World War II. The LRA neither stated the certificate of title was actually issued nor mentioned the number of the OCT. It cannot be determined from any of the evidence submitted by petitioner that the adjudicatee of the purported decree was Limuaco. The purpose of reconstitution of title was to have the original title reproduced in the same form as it was when it was lost or destroyed. In this case, there was no title to be re-issued. O . Reconstitution of Title – Sec. 10 of Act 3110 should apply to reconstitution of title to a pending cadastral action. Republic vs. Oyales G.R. No. 168742 September 3, 2008 FACTS: The Director of Lands filed cadastral case involving lots nos. 2917, 2919, 3272 and 9533 located in Libmanan, Camarines Sur. He prayed that these parcels of land be declared public land. Respondent Norma Royales was a claimant of these lots. Subsequently, the CFI rendered a decision ordering the registration of the lots in the name of respondent. However, before the certificate of finality of the decision and order for the issuance of the decree of registration could be issued by the court, the Registry of Deeds of Camarines Sur was razed by fire. 27 years later, 128 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration respondent filed a petition for the reconstitution CFI decision. The RTC issued an order setting the petition for hearing without directing the respondent to cause the publication of said order in the Official Gazette. It, however, notified the government prosecutor and Land Registration Authority. Hence, this petition raising the lone issue of whether or not publication was necessary for the court to acquire jurisdiction over a petition for reconstitution of a final and executor decision in a cadastral case. HELD: Petitioner argues that under Section 10 of Act 3110, publication in the Official Gazette was necessary in a petition for reconstitution of records of pending cadastral cases. On the other hand, respondent asserted that Section 9 of the same law was the applicable provision. Section 9 of Act 3110 refers to the reconstitution of a pending land registration proceeding while Section 10 applies to the reconstitution of a pending cadastral action, a distinct kind of land registration process. The case here involves a cadastral undertaking. The Court held that it was Section 10 that was applicable to this cadastral proceeding. Consequently, the RTC did not acquire jurisdiction over respondent’s petition for reconstitution for failing to comply with the publication requirement. In line with the ruling in Nacua, Respondent’s remedy was to file the petition for reconstitution anew and observe the requirements under Section 10 of Act 3110. Considering that there was already a final decision in her favor, the case could continue and the court, if proper, may order the issuance of a decree of registration. P. Reconstitution of Titles - If an owner’s duplicate copy of a certificate of title has not been lost but is in fact in possession of another person, the reconstituted title is void and the court rendering the decision has not acquired jurisdiction. Villanueva vs. Viloria G.R. No. 155804. March 14, 2008. [548 SCRA 401 (2008)] HELD: The Court in this case reiterated the ruling in Rexlon Realty Group Inc. vs. CA [429 Phil. 31 (2002)] which cited Strait Times, Inc. vs. CA [G.R. No. 126673. (1998)]. In the Strait Times case, the facts were analogous to those involved in this case, the Court held that if an owner’s duplicate copy of a certificate of title has not been lost but is in fact in possession of another person, the reconstituted title is void and the court rendering the decision has not acquired jurisdiction. Consequently, the decision may be attacked any time. In the case at bar, the authenticity and genuineness of the owner’s duplicate of TCT Nos. T-52537 and T-52538 in the possession of petitioner Rexlon and the Absolute Deed of Sale in its favor have not been disputed. As there is no proof to support actual loss of the said owner’s duplicate copies of said certificates of title, the trial court did not acquire jurisdiction and the new titles issued in replacement thereof are void. VOLUME 34 NUMBER 2 (OCTOBER 2009) 129 Eduardo A. Labitag Q . Reconstitution of Title – Following the principle of ejusdem generis in statutory construction, “any document” mentioned in Sec. 3 of Act No. 26 should be interpreted to refer to documents similar to those previously enumerated therein. Republic vs. Santua G.R. No. 155703. September 8, 2008 ISSUE: Whether tax declarations, technical description, and lot plans are sufficient bases for the reconstitution of lost or destroyed certificates of title? Sec. 3 of Republic Act No. 26 enumerates the documents regarded as valid and sufficient bases for reconstitution of a transfer certificate of title: “SEC. 3. Transfer certificates of title shall be reconstituted from such of the sources hereunder enumerated as may be available, in the following order: (a) The owner’s duplicate of the certificate of title; (b) The co-owner’s, mortgagee’s or lessee’s duplicate of the certificate of title; (c) A certified copy of the certificate of title, previously issued by the register of deeds or by a legal custodian thereof; (d) The deed of transfer or other document on file in the registry of deeds, containing the description of the property, or an authenticated copy thereof, showing that its original had been registered, and pursuant to which the lost or destroyed transfer certificate of title was issued; (e) A document, on file in the registry of deeds, by which the property the description of which is given in said documents, is mortgaged, leased or encumbered, or an authenticated copy of said document showing that its original had been registered; and (f) Any other document which, in the judgment of the court, is sufficient and proper basis for reconstituting the lost or destroyed certificate of title. The instant petition for reconstitution was anchored on Sec. 3(f) of RA No. 26, with respondent proffering three significant documents – a tax declaration, survey plan and technical descriptions of each lot. HELD: The Court held that “any document” mentioned in Sec. 3 should be interpreted to refer to documents similar to those previously enumerated therein, following the principle of ejusdem generis in statutory construction. The tax declaration obviously did not serve as a valid basis for reconstitution. For one, the Court cannot safely rely on Tax Declaration No. 15003-816 as evidence 130 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration of the subject property being covered by TCT No. T-22868 in the name of respondent because a tax declaration was executed for taxation purposes only and was actually prepared by the alleged owner himself. In fact, in Heirs of Eulalio Ragua vs. CA, the Court pronounced that a tax declaration was not a reliable source for the reconstitution of a certificate of title. At most, the tax declaration can only be prima facie evidence of possession or a claim of ownership, which however was not the issue in a reconstitution proceeding. A reconstitution of title did not pass upon the ownership of the land covered by the lost or destroyed title but merely determined whether a re-issuance of such title is proper. Moreover, a survey plan or technical description prepared at the instance of a party cannot be considered in his favor, the same being self-serving. Further, in Lee vs. Republic, the Court declared the reconstitution based on a survey plan and technical descriptions was void for lack of factual support. E. Action for Reconveyance R. Persons who have not obtained title to public lands could not question the titles legally issued by the State. Alegria vs. Dirlong G.R. No. 161317. July 16, 2008. [558 SCRA 459 (2008)] FACTS: Petitioners filed an action for reconveyance and declaration of nullity of the sale of the subject 2 lots alleging that respondents obtained the free patents through fraud. The issue is whether the petitioner has standing to file the case. HELD: The Court ruled that petitioner had no standing to file the case since reconveyance is a remedy granted only to the owner of the property alleged to be erroneously titled in another’s name. In such instances, it is the State which is the proper party to file suit, thus: “Persons who have not obtained title to public lands could not question the titles legally issued by the State. In such cases, the real party-in-interest is the Republic of the Philippines to whom the property would revert if it is ever established, after appropriate proceedings, that the free patent issued to the grantee is indeed vulnerable to annulment on the ground that the grantee failed to comply with the conditions imposed by law. Not being an applicant, much less a grantee, petitioner cannot ask for reconveyance (De la Peña vs. CA, G.R. No. 81827).” Further, Sec. 101 of Commonwealth Act. No. 141 provides that actions for reversion of public lands fraudulently awarded must be instituted by the Solicitor general in the name of the Republic of the Philippines: “Sec. 101. All actions for the reversion to the government of lands of the public domain or improvements thereon shall be instituted by the Solicitor VOLUME 34 NUMBER 2 (OCTOBER 2009) 131 Eduardo A. Labitag General or the officer acting in his stead, in the proper courts, in the name of the Commonwealth of the Philippines.” S. The essence of an action for reconveyance is that the free patent and certificate of title were respected as incontrovertible. Daclag vs. Macahilig G.R. No. 159578. July 28, 2008. [560 SCRA 137 (2008)] FACTS: Candillo and Gregoria Macahilig were owners of seven parcels of land located at Numancia, Aklan. They had seven children, one of whom was Maxima. The latter entered into a Deed of Extra-judicial partition with the heirs of her deceased siblings. One of the properties was Parcel One, which was an irrigated riceland with an area of 1896 sq. m. It was adjudicated in the partition to Eusebio Macahilig (the ½ northern portion) and to the heirs of Mario Macahilig, the ½ southern portion. The respondents filed a complaint for recovery of possession and ownership, cancellation of documents and damages against petitioners. The respondents alleged that they were the lawful owners and previous possessors of the one half northern portion of Parcel One by virtue of a Deed of Extra-judicial partition; that since they were all residents of Caloocan City, their land was possessed by their first cousin, Penicula Quijano (Maxima’s daughter), as tenant thereon, as she was also in possession of the ½ southern portion as tenant of the heirs of Mario Macahilig; that sometime in 1983, Ms. Quijano allowed Maxima to farm the land; that without their knowledge, Maxima illegally sold the entire riceland to petitioners, who were now in possession of the land. HELD: The Court held that Maxima was not the owner of the land since ½ northern portion of such land was owned by the respondents. Consequently, Maxima had no right to dispose of the land. Nemo dat quod non habet. The reconveyance of the subject land to respondents was proper. The essence of an action for reconveyance is that the free patent and certificate of title are respected as incontrovertible. What is sought is the transfer of the property, which has been wrongfully or erroneously registered in another person’s name, to its rightful owner or to one with a better right. Moreover, an action for reconveyance prescribes in 10 years, the point of reference being the date of registration of the deed or the date of issuance of the certificate of title over the property. Records show that while the land was registered in the name of petitioner Rogelia in 1984, the instant complaint for reconveyance was filed by the respondents in 1991, and was thus still within the ten-year prescriptive period. T. The action for reconveyance on the ground that the certificate of title was obtained by means of a fictitious deed of sale is virtually an action for the declaration of its nullity, which does not prescribe. 132 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Santos vs. Heirs of Dominga Lustre G.R. No. 151016. August 6, 2008. [561 SCRA 120 (2008)] FACTS: Petitioners Macaspac filed a Complaint for Declaration of the Inexistence of Contract, Annulment of Title, Reconveyance and Damages (Civil Case No. 1330) against the Froilan Santos. They alleged that the sale of the property from their predecessor-in-interest to the spouses Santos was simulated. While the case was pending, another group filed a Complaint for Annulment of Transfer Certificate of Title and Deed of Absolute Sale (Civil Case No. 2115) against the spouses Santos, et al., with the same RTC. The second case made the same allegations. Petitioners filed a motion to dismiss on the second civil case alleging that the plaintiff’s right of action had long prescribed and was barred by laches. HELD: The action for reconveyance on the ground that the certificate of title was obtained by means of a fictitious deed of sale is virtually an action for the declaration of its nullity, which does not prescribe. Moreover, a person acquiring property through fraud becomes, by operation of law, a trustee of an implied trust for the benefit of the real owner of the property. An action for reconveyance based on an implied trust prescribes in ten (10) years. In such a case, the prescriptive period applied only if there was an actual need to reconvey the property as when the plaintiff was not in possession of the property. Otherwise, if plaintiff was in possession of the property, prescription does not commence to run against him. Thus, when an action for reconveyance was nonetheless filed, it would be in the nature of a suit for quieting of title, an action that is imprescriptible. F. Overlapping of Titles U . Overlapping Titles – a land owner loses the right to claim that his property has been encroached when his predecessor did not register any objections at the time the encroachment was made. Cambridge Realty and Resources Corp. vs. Eridanus Development, Inc. G.R. No. 152445. July 4, 2008 ISSUE: Whether a Torrens Certificate of title, complete and valid on its face may be defeated by another Torrens certificate of title which, on its face, is irregular, and which contains defective technical description. HELD: A case of overlapping of boundaries or encroachment depends on a reliable, if not accurate, verification survey; barring one, no overlapping or encroachment may be proved successfully, for obvious reasons. In the wake of the majority expert opinion that by changing the tie or reference point from a PLS to a BLLM 1 monument, a corresponding effect on the survey occurs – which can include a change in boundaries and, at worst, an overlap - the Court is not prepared to declare that an accurate survey of the respondent’s properties has been made as to be a proper basis of the present claim of encroachment or overlap. VOLUME 34 NUMBER 2 (OCTOBER 2009) 133 Eduardo A. Labitag Also, the continuous presence of the old adobe wall diminishes the case for the respondents. In was only in 1989 that the wall became an ungainly sight for respondents. Previous owners of what not constitutes the respondent’s respective lots did not complain of its presence. In several overlapping of boundaries cases, the Court held that a land owner may not now claim that his property has been encroached upon when his predecessor did not register any objections at the time the monuments were being placed on the claimed encroached area; nor did the latter make any move to question the placement of said monuments at the time. IX. Miscellaneous Rulings A. Possession A . Where the trial court had already granted the writ of possession sought by the buyer at an extrajudicial foreclosure sale, a petition to consolidate said case with the case pending before another court for Declaration of Nullity of Contracts/Discharge of Mortgage, Annulment of Extrajudicial Foreclosure Sales, Reconveyance, had become moot and academic. Leong vs. Tanguanco G.R. No. 154632. March 14, 2008. [548 SCRA 387 (2008)] HELD: The Court in this case upheld the doctrine in the case of Spouses Eduardo Vaca and Ma. Luisita Pilar vs. CA and Associated Bank (G.R. No. 109672, 14 July 1994). The said case cited the earlier cases of Vda. De Jacob vs. CA (G.R. Nos. 88602 & 89544, 06 April 1990, 184 SCRA 1990) and Navarra vs. CA (G.R. No. 86237, 17 December 1991, 204 SCRA 850), decreeing that: “the pendency of a separate civil suit questioning the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession because the same is a ministerial act of the trial court after title has been consolidated in the name of the mortgagee. Likewise, for obvious reasons, respondents’ prayer for the consolidation of this case with the civil case in Las Piñas is not warranted. Pursuant to Sec. 7 of Act NO. 3135, it is this Court which has jurisdiction over this case considering that the subject parcels of land are all situated in Bacoor, Cavite.” The RTC of Bacoor, Cavite had already granted the writ of possession sought by Hermosa. Hence, the petition to consolidate the case before the RTC of Bacoor, Cavite with the case pending before the RTC of Las Piñas, had become moot and 134 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration academic. This does not, however, preclude petitioners from availing themselves of appropriate remedies depending upon the outcome in the RTC of Las Piñas case. B. Just Compensation B. Meaning of Just Compensation was explained. Land Bank of the Philippines vs. Orilla G.R. No. 157206. June 27, 2008 HELD: The Court held that constitutionally, “just compensation” is the sum equivalent to the market value of the property, broadly described as the price fixed by the seller in open market in the usual and ordinary course of legal action and competition, or the fair value of the property as between the one who receives and the one who desires to sell, it being fixed at the time of the actual taking by the government. It has been repeatedly stressed by the Court that the true measure is not the taker’s gain but the owner’s loss. The word “just” is used to modify the meaning of the word “compensation” to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full and ample. The concept of just compensation embraces not only the correct determination of the amount to be paid to the owner of the land, but also payment within a reasonable time from its taking. Without prompt payment, compensation cannot be considered “just” inasmuch as the property owner made to suffer the consequences of being immediately deprived of his land while being made to wait from a decade or more before actually receiving the amount necessary to cope with his loss. While prompt payment of just compensation requires the immediate deposit and release to the land-owner of the provisional compensation as determined by the DAR, it does not end there. Verily, it also encompasses the payment in full of the just compensation to the landholders as finally determined by the courts. Thus, it cannot be said that there is already prompt payment of just compensation when there is only a partial payment thereof, as in this case. Land Bank of the Philippines vs. Heirs of Domingo G.R. No. 168533. February 4, 2008. [543 SCRA 627 (2008)] HELD: In the case at bar, there is no doubt that Domingo’s land was taken by the government under PD 27. However, it was only in 1994 when LBP prepared the Land Transfer Payment Form which was superseded by a Claims Processing Form issued in 2002. In Assoc. of Small Landowners vs. Sec. of Agrarian Reform, [175 SCRA 343 (1989)], the Court held that it is a recognized rule that title to the property shall pass from the owner to the expropriator only upon full payment of just compensation. The date of the taking of the subject land for purposes of computing just compensation should be reckoned from the dates of the issuance of the emancipation patents. An emancipation patent constitutes the conclusive authority for the issuance of a Transfer Certificate of Title in the name of the grantee. It is VOLUME 34 NUMBER 2 (OCTOBER 2009) 135 Eduardo A. Labitag from the issuance of an emancipation patent that the grantee can acquire the vested right of ownership on the landholding, subject to the payment of just compensation to the landowner. Lee vs. Land Bank of the Philippines G.R. No. 170422. March 7, 2008. [548 SCRA 52 (2008)] The Court in this case cited Sec. 17 of R.A. No. 6657 which enumerates the factors to be considered in determining just compensation reads: “SEC. 17. Determination of Just Compensation. – In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, tax declarations, and the assessment made by government assessors shall be considered. The social and economic benefits contributed by the farmers and the farmworkers and by the Government to the property as well as the non-payment of taxes or loans secured from any government financing institutions on the said land shall be considered as additional factors to determine its valuation.” The Court explained that these factors have already been incorporated in a basic formula by the DAR pursuant to its rule-making power under Sec. 49 of R.A. No. 6657. A.O. No. 5 precisely filled in the details of Sec. 177, R.A. No. 6657 by providing a basic formula by which the factors mentioned therein may be taken into account. This formula has to be considered by the SCA in tandem with all the factors referred to in Sec. 17 of the law. The administrative order provides: A. There shall be one basic formula for the valuation of land covered by the VOS or CA: LV = (CNI x 0.6) + (CS x 0.3) + (MV x 0.1) Where: LV = Land Value CNI = Capitalized Net Income CS = Comparable Sales MV = Market Value per Tax Declaration The above formula shall be used if all three factors are present, relevant, and applicable. A.1. When the CS factor is not present and CNI and MV are applicable, 136 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration the formula shall be: LV = (CNI x 0.9) + (MV x 0.1) A.2. When the CNI factor is not present, and CS and MV are applicable, the formula shall be: LV = (CS x 0.9) + (MV x 0.1) A.3. When both the CS and CNI are not present and only MV is applicable, the formula shall be: LV = MV x 2 In no case shall the value of idle land using formula MV x 2 exceed the lowest value of land within the same estate under consideration or within the same barangay or municipality (in that order) approved by LBP within one (1) year from receipt of claimfolder. --Where: CNI = (AGP x SP) - CO .12 AGP = Average Gross Production corresponding to the latest available 12 months’ gross production immediately preceding the date of FI (field investigation) SP = Selling Price (the average of the latest available 12 months selling prices prior to the date of receipt of the CF (claim folder) by LBP for processing, such prices to be secured from the Department of Agriculture (DA) and other appropriate regulatory bodies or, in their absence, from the Bureau of Agricultural Statistics. If possible, SP data shall be gathered for the barangay or municipality where the property is located. In the absence thereof, SP may be secured within the province or region. CO = Cost of Operations Whenever the cost of operations could not be obtained or verified, an assumed net income rate (NIR) of 20% shall be used. Landholdings planted to coconut which are productive at the time of FI shall continue to sue the assumed NIR of 70%. DAR and LBP shall continue to conduct joint industry studies to establish the applicable NIR for each crop covered under CARP. 0.12 = Capitalization rate VOLUME 34 NUMBER 2 (OCTOBER 2009) 137 Eduardo A. Labitag Land Bank of the Philippines vs. Heirs of Cruz G.R. No. 175175. September 29, 2008. [567 SCRA 31] FACTS: Respondents are the heirs of Eleuterio Cruz, the registered owner of an unirrigated riceland situated in Lakambini, Tuao, Cagayan a considerable portion of which was placed by the government under the coverage of the operation land transfer program under P.D. 27. HELD: The Court in this case held that since the amount of just compensation due to the land owners had not yet been settled by the time R.A. No. 6657 became effective the fixing of just compensation should therefore be based on the parameters set out in R.A. No. 6657, with P.D. No. 27 and E.O. No. 228 having only suppletory effect. In Land Bank of the Philippines vs. Natividad, [G.R. No. 127198. (2005)] the Court explained why the guidelines under P.D. No. 27 and E.O. No. 228 are no longer applicable to the delayed payment of lands acquired under P.D. No. 27, to wit: “It would certainly be inequitable to determine just compensation based on the guideline provided by PD No. 27 and EO 228 considering the DAR’s failure to determine the just compensation for a considerable length of time. That just compensation should be determined in accordance with RA 6657, and not PD 27 or EO 228, is especially imperative considering that just compensation should be the full and fair equivalent of the property taken from its owner by the expropriator, the equivalent being real, substantial, full and ample.” Nepomuceno vs. City of Surigao G.R. No. 146091. July 28, 2008. [560 SCRA 41 (2008)] HELD: In a long line of cases, the Court has consistently ruled that where actual taking is made without the benefit of expropriation proceedings and the owner seeks recovery of the possession of the property prior to the filing of expropriation proceedings, it is the value of the property at the time of taking that is controlling for purposes of compensation. As pointed out in Republic vs. Lara, the reason for this rule is: “The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way the compensation to be paid can be truly just; i.e., “just” not only to the individual whose property is taken, “but to the public, which is to pay for it.” 138 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Regarding petitioner’s contention on the applicability of Art. 1250 of the Civil Code, Republic vs. CA is enlightening: “Article 1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the currency at the time of the establishment of the obligations shall be the basis for the payment when no agreement to the contrary is stipulated, has strict application only to contractual obligations. In other words, a contractual agreement is needed for the effects of extraordinary inflation to be taken into account to alter the value of the currency.” Since there was never any contractual obligation between the parties in this case, Article 1250 of the Civil Code finds no application. C . The nature, as well as the character of the land at the time of taking is the principal criterion in determining just compensation. All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, must thus be considered. NPC vs. Angel Suarez, et. al. G.R. No. 175725. October 8, 2008. [568 SCRA 232 (2008)] ISSUE: Whether petitioner, the National Power Corporation (NPC), in its acquisition of an easement of right of way (aerial) over a parcel of land, only a fee, not the full value of the land, must be paid. In order to implement its 350 KV Leyte Luzon HDVC Power Transmission Project which aimed to transmit the excess electrical generating capacity from the Leyte Geothermal Plant to Luzon and various load centers. Respondent’s land was expropriated. There were expectedly conflicting valuations of the said land. RTC upheld its appointed commissioners’ valuation at of P783, 860.46. CA affirmed. HELD: Petitioner argues that since it merely seeks an aerial easement over the property, the decision of the appellate court’s decision was erroneous. The Court held that the petitioner’s plea for the application of Sec. 3A(b) of RA 6395 (Revised Charter Of The National Power Corporation), which directs the payment of an amount equivalent to only 10% of the market value of the property as just compensation for an easement of right of way, does not lie. The acquisition of such an easement falls within the purview of the power of eminent domain since it deprives the respondent of the normal use of the property. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land. The Court further held that petitioner’s assertion that respondents can still make use of the property by planting corn, rice, root crops and similar plants fails to consider that the property was originally tilled and suited for, as reflected in the VOLUME 34 NUMBER 2 (OCTOBER 2009) 139 Eduardo A. Labitag Commissioners’ Report, 234 fruit bearing coconut trees, 617 abaca plants, 50 madre de cacao and 23 jackfruit trees. That petitioner prohibited respondents from planting trees higher than three meters clearly shows that the easement had impaired respondents’ beneficial enjoyment of their property to warrant the imposition of payment of its full value. The measure is thus not the taker’s gain but the owner’s loss. The word “just” is used to intensify the meaning of the word “compensation” and to thereby convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. NPC vs. Purefoods Corp. G.R. No. 160725. September 12, 2008. [565 SCRA 17] FACTS: NAPOCOR was to construct and maintain its San Jose-San Manuel 500 KV Transmission Line Project and had to acquire an easement of right-of-way over eight parcels of land owned by several respondents. Respondents claimed that they should be indemnified based on prevailing market purchase price, that the peripheral area should be included, that NAPOCOR’s offer was excessively low, undervalued, and obsolete and that its action had caused extreme prejudice to investments and further delay in construction and development of other businesses. NAPOCOR claims that it should only pay for an easement fee and not the full value of the property because an easement of a right of way transmits no rights except the easement itself while the full ownership is retained by the respondent. HELD: The Court ruled that if the nature of the easement will deprive the normal use of the land for an indefinite period, just compensation must be based on the full market value of the affected properties. The passage of NAPOCOR’s transmission lines over the affected property causes not only actual damage but also restriction on the agricultural and economic activity normally undertaken on the entire property. Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession but also includes a right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines, as in this case. The Court further explained that in eminent domain or expropriation proceedings, the general rule is that the just compensation to which the owner of the condemned property is entitled is the market value. Market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor. But where only a part of a certain property is expropriated, the owner is not restricted to compensation for the portion actually taken. In addition to the market value of the portion taken, he is also entitled to recover the consequential damage, if any, to the remaining part of the property. At the same time, from the total compensation must be deducted the value of the consequential benefits. 140 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration D. The non-filing of the case for expropriation will not necessarily lead to the return of the property to the landowner. What is left to the landowner is the right of compensation. FORFOM Development Corp. vs. PNR G.R. No. 124795 December 10, 2008 FACTS: Forfom was the registered owner of several parcels of land in Laguna. The San Pedro-Carmona Commuter Line Project, a project by then President Marcos, was implemented with the installation of railroad facilities and appurtenances. During construction, several properties, including that of the petitioner’s, were traversed as right-of-way. Respondent Philippine National Railways (PNR) failed to file an expropriation case and provide just compensation. Petitioner argues that these circumstances entitle it to recovery of possession over the land. HELD: The power of eminent domain, though inherent in the State, is subject to Section 9, Article III of the Constitution which states that private property shall not be taken for public use without just compensation. A number of circumstances must be present in the taking of property for purposes of eminent domain: (1) the expropriator must enter a private property; (2) the entrance into private property must be for more than a momentary period; (3) the entry into the property should be under warrant or color of legal authority; (4) the property must be devoted to a public purpose or otherwise informally, appropriately or injuriously affected; and (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. All of these are present in the case at bar, hence it is clear from the foregoing that there was a taking of property within the constitutional sense. However, it is also understood that recovery of possession of the property by the landowner can no longer be allowed on the grounds of estoppel and, more importantly, of public policy which imposes upon the public utility the obligation to continue its services to the public. The non-filing of the case for expropriation will not necessarily lead to the return of the property to the landowner. What is left to the landowner is the right of compensation. D. DARAB Jurisdiction E . DARAB retains jurisdiction over disputes arising from agrarian reform matters even though the landowner or respondent interposes the defense of reclassification of the subject lot from agricultural to non-agricultural use. VOLUME 34 NUMBER 2 (OCTOBER 2009) 141 Eduardo A. Labitag Laynesa vs. Uy G.R. No. 149553. February 29, 2008. [547 SCRA 200 (2008)] HELD: The Court held that despite the reclassification of an agricultural land to non-agricultural land by a local government unit under Sec. 20 of RA 7160, the DARAB still retains jurisdiction over a complaint filed by a tenant of the land in question for threatened ejectment and redemption for the reason that jurisdiction is determined by the statute in force at the time of the commencement of the action. Likewise settled is the rule that jurisdiction over the subject matter is determined by the allegations of the complaint. DARAB case No. V- RC-028 was filed by the tenants of an agricultural land for threatened ejectment and its redemption from respondents. It cannot be questioned that the averments of the DARAB case clearly pertain to an agrarian reform laws. Such being the case, the complaint falls within the jurisdiction of the DARAB under Sec. 50 of RA 6657 on the quasi-judicial powers of the DAR. It bears stressing that the DAR has primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of the agrarian reform except those falling under the exclusive jurisdiction of the Department of Agriculture and the DENR. Primary jurisdiction means in case of seeming conflict between the jurisdictions of the DAR and regular courts, preference is vested with the DAR because of its expertise and experience in agrarian reform matters. Sec. 50 is also explicit that except for the DA and DENR, all agrarian reform matters are within the exclusive original jurisdiction of the DAR. Therefore, the Court held that the DARAB retains jurisdiction over disputes arising from agrarian reform matters even though the landowner or respondent interposes the defense of reclassification of the subject lot from agricultural to non-agricultural use. F. DARAB. All controversies on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the Department of Agrarian Reform (DAR), even though they raise questions that are also legal or constitutional in nature. Tan vs. Link G.R. No. 172849. December 10, 2008 HELD: The Court in this case, found that jurisdiction over the complaint of the petitioners fell on the DARAB. Well settled is the rule that jurisdiction is determined by the allegations in the complaint. Mainly, petitioners do not agree in the Orders of the DARAB officials which were prejudicial to them. Petitioners allege that the orders were issued by the DARAB with grave abuse of discretion or with lack or excess of jurisdiction. Perusal of petitioners’ complaint would reveal that petitioners themselves invoked and accepted the jurisdiction of the DARAB over their dispute with respondent Link. Petitioners’ prayer is even more obvious: they request the RTC to reverse/set aside the DARAB Order directing payment of 142 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration just compensation to respondent Link and the DARAB Order denying their Motion for reconsideration. Sec. 1, Rule II, 2002 DARAB Rules of Procedure pointedly covers this particular issue before us. It provides: “Sec. 1. Primary And Exclusive Original and Appellate Jurisdiction. – The board shall have primary and exclusive jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes involving the implementation of the Comprehensive Agrarian Reform Program (CARP) under Republic Act No. 6657, Executive Order Nos. 228, 229, and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389, Presidential Decree No. 27 and other agrarian laws and their implementing rules and regulations. x x x.” Islanders CARP-Farmers Beneficiaries Multi-Purpose Cooperative, Inc. vs. Lapanday Agricultural and Development Corporation [G.R. No. 159089 (2006)] instructs that; “All controversies on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the Department of Agrarian Reform (DAR), even though they raise questions that are also legal or constitutional in nature. All doubts should be resolved in favor of the DAR, since the law has granted it special and original authority to hear and adjudicate agrarian matters.” Hilario vs. Prudente G.R. No. 150635, September 11, 2008. [564 SCRA 485] FACTS: Petitioner filed a protest to oppose the inclusion of her land in the CARP and the identification of the respondents and Benito Prudente as farmerbeneficiaries, averring that they were neither tenants nor occupant-tillers of the subject property. The protest was denied by the Provincial Agrarian Reform Officer (PARO). Petitioner filed a forcible entry case in the MTC which ruled in her favor. RTC reversed for lack of jurisdiction. CA affirmed RTC. HELD: The Court held that the case filed with the MTC clearly concerned an agrarian dispute involving the implementation of the CARP which the petitioner was fully aware of. It was obvious that the petitioner filed the ejectment suit with the MTC in order to thwart the unfavorable ruling she obtained from the PARO. In the case of Bautista vs. Mag-isa Vda. de Villena [G.R. No. 152564. (2004)] the Court held that under Republic Act 6657, the DAR retains jurisdiction over all agrarian reform matters. The pertinent provision reads: “Sec. 50. Quasi-Judicial Powers of the DAR. - The DAR is hereby vested with the primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of agrarian reform, except those falling VOLUME 34 NUMBER 2 (OCTOBER 2009) 143 Eduardo A. Labitag under the exclusive jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources.” G. Reclassified agricultural lands must undergo process of conversion in DAR before they may be used for other purposes. DAR vs. Polo Coconut Plantation Co., Inc. G.R. No. 168787. September 3, 2008 HELD: The Court in this case cited Ros vs. Department of Agrarian Reform, [468 SCRA 471 (2005)], which held that reclassified agricultural lands must undergo the process of conversion in the DAR before they may be used for other purposes. Since the DAR never approved the conversion of the Polo estate from agricultural to another use, the land was never placed beyond the scope of the CARP. The approval of the DAR for the conversion of agricultural land into an industrial estate is a condition precedent for its conversion into an ecozone. A proposed ecozone cannot be considered for Presidential Proclamation unless the landowner first submits to PEZA a land use conversion clearance certificate from the DAR. This PCPCI failed to do. E. Tenancy Relations H. DARAB. Tenancy. Claims that one is a tenant do not automatically give rise to security of tenure. The elements of tenancy must first be proved in order to be entitled to security of tenure. Jeremias vs. Estate of Mariano G.R. No. 174649. September 26, 2008. [566 SCRA 539 (2008)] FACTS: Irene P. Mariano owned two parcels of land, a little over 27 hectares, located in Barangay Balatas, Naga City. In 1972, the said parcels of land were placed under the Operation Land Transfer Program pursuant to P.D. 27, and among the tenant-beneficiaries was Santiago Jeremias, the father of herein petitioner, Leopoldo Jeremias. Ruben Vinas was also instituted allegedly as a tenant by the wife of Jose Mariano (heir of Irene) through an unsigned letter. Irene P. Mariano died intestate and the appointed administrator filed a case for ejectment and damages against both Jeremias and Vinas alleging that neither of them were tenants of the disputed land. The Estate alleges that petitioners gained access to the latter through surreptitious means and unjustly refused to vacate upon demand. PARAD (Provincial Agrarian Reform Adjudicator) ruled for the Estate. DARAB (Department of Agrarian Reform Adjudication Board) reversed upholding petitioners’ tenancy. CA upheld PARAD decision. HELD: The Court held that Jeremias and Vinas were NOT tenants. RA 1199 (Agricultural Tenancy Act of the Philippines) defines a tenant as a person who, himself, and with the aid available from within his immediate farm household, cultivates the 144 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration land belonging to or possessed by another, with the latter’s consent for purposes of production, sharing the produce with the landholder under the share tenancy system, or paying to the landholder a price certain or ascertainable in produce or in money or both, under the leasehold system. The Court has in the past ruled that self serving statements regarding tenancy relations could not establish the claimed relationship. The fact alone of working on another’s landholding does NOT raise a presumption of the existence of agricultural tenancy. Substantial evidence entails not only the presence of a mere scintilla of evidence in order that the fact of sharing can be established; there must be concrete evidence on record to evidence the element of sharing. In this case, both petitioners failed to satisfy the required burden of proof. Jeremias’ failure to produce a single morsel of evidence that he was authorized to till the other lots (which he did not inherit from his father-the lawful tenant) is fatal to his cause. Vinas’ letter which was unsigned was likewise insubstantial as evidence. I. Requisites for tenancy relations to be present were enumerated. Salmorin vs. Zaldivar G.R. No. 169691. July 23, 2008 The Court in this case reiterated the ruling in Saul v Suarez [G.R. No. 166664, 473 SCRA 628 (2005)] : “There must be evidence to prove the tenancy relations such that all its indispensable elements must be established, to wit” (1) the parties are the landowner and the tenant; (2) the subject is agricultural land; (3) there is consent by the landowner; (4) the purpose is agricultural production; (5) there is personal cultivation; and (6) there is sharing of the harvests. All these requisites are necessary to create tenancy relationship, and the absence of one or more requisite will not make the alleged tenant a de facto tenant.” F. Mortgage B&I Realty Co, Inc vs. Caspe G.R. No. 146972, January 29, 2008. [543 SCRA 1] FACTS: Venegas and her husband, respondents and Datuin entered into a compromise agreement whereby the Venegases agreed to sell and transfer the property to respondents with the condition that they (respondents) would assume and settle Datuin’s mortgage debt to petitioner. The amount corresponding to the unpaid mortgage would be deducted from the consideration. The issue here is whether or not prescription had already set in. VOLUME 34 NUMBER 2 (OCTOBER 2009) 145 Eduardo A. Labitag HELD: The Court held, citing Art. 1142 and Art. 1155 of the Civil Code, that although the deed of real estate mortgage and the promissory note executed by Datuin expressly declared that the date of maturity of the loan was May 14, 1974 or one year after the real estate mortgage was entered into between Datuin and petitioner, the same could not be the reckoning point for purposes of counting the prescriptive period of the mortgage. This is because Datuin and respondents Caspe executed a deed of absolute sale on October 30, 1975 whereby the latter acknowledged and assumed the mortgage obligation of the former in favor of petitioner. Under Article 1155 of the Civil Code, the written acknowledgment and assumption of the mortgage obligation by respondents had the effect of interrupting the prescriptive period of the mortgage action. The computation of the prescriptive period of any cause of action starts from the date when the cause of action accrues. Here, petitioner’s cause of action accrued from the time respondents stopped paying the mortgage debt they assumed from Datuin, in accordance with Article 1151 of the Civil Code: “Art. 1151. The time for the prescription of actions which have for their object the enforcement of obligations to pay principal with interest or annuity runs from the last payment of the annuity or of the interest.” It was then that respondents committed a breach of duty to pay their remaining obligation to the former. Thus, the ten-year prescriptive period should be reckoned from January 14, 1980. Petitioner had until January 14, 1990 to file suit so that, when it sued on August 27, 1993, the action had already prescribed. J. An equitable mortgage is one which, although lacking in some formality, or form, or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law. Dorada Vda. De Delfin vs. Dellota G.R. No. 143697. January 28, 2008. [542 SCRA 397] FACTS: Dionisia Delfin, owner of a property with an area of 143,935 sq. m. executed a (1) Pacto de Retro of her 50,000 sq. m. property in favor of the spouses Ildefonso Dellota, but failed to exercise her right of redemption. Twenty years later, she executed a (2) “Deed of Sale with Right of Redemption” through which she sold another 50,000 sq. m. portion of the property to Gumersindo Delena, but failed to redeem the same. Records show that Salvador Dellota leased this area from Gumersindo. Dionisia then executed a Deed of Mortgage and Promise to Sell in favor of Salvador Dellota, without specifying whether it included the lot sold to Gumersindo. Heirs of Dionisia contend that the Deed of Sale with Gumersindo was an equitable mortgage. 146 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration HELD: The Court in this case held that an equitable mortgage is one which, although lacking in some formality, or form, or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law. The essential requisites of an equitable mortgage are: (1) the parties enter into what appears to be a contract of sale, (2) but their intention is to secure an existing debt by way of mortgage. For the contract to be converted from a purported contract of sale into an equitable mortgage, what should be determined is whether the consideration of P5,300.00 paid by Gumersindo to Dionisa for a five-hectare portion of Lot No. 1213 on June 9, 1949 is “unusually inadequate” [Art. 1602 (1), NCC]. In sales denominated as pacto de retro, the price agreed upon should not generally be considered as the just value of the thing sold, absent other corroborative evidence. On the part of the vendor, the right to repurchase the land is immaterial as to whether or not the price of the sale is the just value thereof; for the vendee, the price does not induce him to enter into the contract as he does not acquire the thing irrevocably, but subject to repurchase at the stated period but only has an expectancy that he will acquire the thing absolutely at a favorable price should the vendor fail to redeem the thing sold. There is no reason to conclude that the 1949 price of P5,300 was unreasonable or unusually inadequate, since it is presumed that a person takes ordinary care of his concerns absent any showing of fraud or threat into signing the contract. Even assuming it was an equitable mortgage, Dionisia failed to redeem the property for 15 years until the complaint was filed. Her heirs claim that since Dionisia had been paying the realty taxes follows that she owns the property. Settled is the rule that tax receipts per se are not conclusive evidence of land ownership absent other corroborative evidence. G. Judicial Confirmation of Imperfect Title K . The reckoning date under the Public Land Act, as amended, for the acquisition of ownership of public lands is likewise 12 June 1945 or earlier. Republic vs. Imperial Credit Corporation G.R. No. 173088. June 25, 2008. [555 SCRA 315 (2008)] HELD: The Court in this case ruled that the date “12 June 1945” under the aforequoted provisions is a reiteration of Sec. 4 of P.D. No. 1073, which, in turn, amended Sec. 48(b) of the Public Land Act. The reckoning date under the Public Land Act, as amended, for the acquisition of ownership of public lands is likewise 12 June 1945 or earlier, and evidence of possession from the date or earlier is essential for a grant of an application for judicial confirmation of imperfect title. VOLUME 34 NUMBER 2 (OCTOBER 2009) 147 Eduardo A. Labitag L. The Government of the Philippine Islands bought the friar lands not from individual persons but from certain companies, a society, and a religious order. Cañete vs. Genuino Ice Co., Inc. G.R. No. 154080. January 22, 2008. [542 SCRA 206 (2008)] HELD: The Court held that one who acquires land under the Friar Lands Act, as well as his successor in interest, may not claim successional rights to purchase by reason of occupation from time immemorial, as this contravenes the historical fact that friar lands were bought by the Government of the Philippine Islands, pursuant to an Act of Congress of the United States, approved on 1 July 1902, not from individual persons but from certain companies, a society and a religious order. Under the Friar Lands Act, only “actual settlers and occupants at the time said lands are acquired by the Government” were given preference to lease, purchase, or acquire their holdings, in disregard of the settlement and occupation of persons before the government acquired the lands. 148 IBP JOURNAL Survey of 2008 Court Decisions on Property and Land Registration Integrated Bar of the Philippines BOARD OF GOVERNORS (2007-2009) FELICIANO M. BAUTISTA Chairman ROGELIO A. VINLUAN Vice Chairman & Governor for Southern Luzon ABELARDO C. ESTRADA Governor for Northern Luzon EVERGISTO S. ESCALON Governor for Eastern Visayas ERNESTO A. GONZALES, JR. Governor for Central Luzon RAYMOND JORGE A. MERCADO Governor for Western Visayas MARCIAL M. MAGSINO Governor for Greater Manila RAMON EDISON C. BATACAN Governor for Eastern Mindanao BONIFACIO T. BARANDON, JR. Governor for Bicolandia CARLOS L. VALDEZ, JR. Governor for Western Mindanao NATIONAL OFFICERS (July 2007 - June 2009) FELICIANO M. BAUTISTA National President ROGELIO A. VINLUAN Executive Vice President TOMAS N. PRADO National Secretary ESTER SISON CRUZ National Treasurer JAIME M. VIBAR National Executive Director ROSARIO T. SETIAS-REYES National Director for Legal Aid ALICIA A. RISOS-VIDAL National Director for Bar Discipline DOMINIC C.M. SOLIS Assistant National Secretary MARIA TERESITA C. SISON GO Assistant National Treasurer DEAN PACIFICO A. AGABIN General Counsel ROGELIO V. GARCIA Deputy Director for Bar Discipline ROAN I. LIBARIOS Editor-in-Chief, IBP Journal RODOLFO G. URBIZTONDO Deputy General Counsel & Chief of Staff JOSE AMOR M. AMORADO Presidential Assistant for External Affairs EDUARDO A. LABITAG Managing Editor, IBP Journal HERMINIO HARRY L. ROQUE, JR. Presidential Assistant for Human Rights MANUEL P. LEGASPI Presidential Assistant for Chapter Affairs OLIVER B. SAN ANTONIO Presidential Assistant for Public Relations Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.org.ph Email: journal@ibp.org.ph VOLUME 34 NUMBER 2 (OCTOBER 2009) 149