Friday, September 12, 2008


The Price Democracy has to Pay?

If there are people who are greatly affected by these familial empires, it would be those people living in the countryside who are victims of grinding poverty that has resulted from centuries-old feudalism. Being that, one would be urged to find do these dynasties remain resilient for decades, sometimes for generation, even in democratic societies? Why do these people continue on securing these families’ cleave to political power. (Of course, we shall not eliminate other reasons why they consistently reap votes sufficient to retain them in position.) Why do they seem to want their leaders to members of famous families and clans? To supplant hard and fast answers may be quite difficult but a study of the source of political power as well as the nature of power struggle in the Philippines may be a little of help.

Political power is the basic force on the political process and in structuring the society. It is both a compensation and a determinant in the distribution of wealth and prestige in the stratification system. And in a democratic country as ours, political power is generally a result of the popular will expressed through the ballot.[1] In a democracy, power is vested in the masses who in turn, delegate this power to those whom they elect to represent them in the government. Election is a procedure by which members of communities and/or organizations choose persons to hold an office’ (Nohlen, 1984). It is a technique of rendering authority and/or creating representative bodies. As said, election is an implement of democracy. Ideally, elections here in the Philippines, especially after we gained freedom in 1986, are purposed to legitimize the government and perpetuate elite rule. As placed by Conrado de Quiros, a known journalist and a victim of the Martial rule noted that elections are supposed to be the “equilibrating” mechanism, although their ability to equilibrate society under the combined weight of mass restiveness and competing claims to power by various power blocs would diminish in time.” Unfortunately however, this high regard for elections have suffered due to the existence of political dynasties in the country today.

It must be remembered that democracy was diminished during the 14-year Marcos dictatorship. In fact, the Philippines have to undergo a tedious process to recuperate if not to exhume itself from the graveyard of democracy. Thus, when democracy was regained, Filipinos were seen to greatly treasure such acquired freedom. Unfortunately, however, the existence of political dynasties shows otherwise. In fact, the power of one the incidents of democracy, which is election, seem to have been not been appreciated and cherished as it should be.

Democratic government, as former US President Abraham Lincoln in his famous Gettysburg Address refers to, is “A government of the people, by the people and for the people.” Democratic government of course, by this definition, is a representative government. One which is attained through a democratic election wherein all qualified citizens participate, with each having one vote, to elect their representatives to their government (of the people) who will run the government (by the people) for the general welfare (for the people). Of course, this presupposes that the representative shall be chosen via a free, honest, fair and peaceful election by the people who has an unbridled freedom to give their mandate. Ideally, of course, there is a requirement that the people’s choice of their representative at election should not be limited by wealth, power and influence.

Given those, can we now question the mandate of the electorate in choosing their representatives through familial affiliations? The unfortunate consequence therefore is that political dynasties, as a dominant feature of Philippine politics, have placed in grave doubt and peril representative democracy. And thus, political institutions will only have a veneer of democracy as long as political dynasties are not dismantled. The very essence and purpose of democracy—representative government—would be thwarted. Public officials would not truly represent the vox populi, but only the vox familiae.

Wednesday, July 30, 2008



A few Saturdays back while taking some time out from reading Taxation Law, I happened to watch Wowowee’s portion of Ms. Fitrum. Of the 8 girls that blatantly exposed their bodies in front of the whole world in exchange of their small share of the limelight, a certain Nikka Santos took my attention. She was speaking in slang carabao English. The worst part is, SHE WAS CONFIDENT ABOUT IT! All the three judges were laughing at her. I bet the whole world is laughing at her. I remember the beauty queen who created the same fiasco some months ago in the question and answer portion. The worst is SHE WON. I do not know what came up in the judges’ head for their call. As a Filipino, it is a concern that we Filipinos are known most in the world as laborers, as secondary citizens of the various countries they are forced to work to. These beauty pageants can be an avenue of telling the whole world that hey we are far from what you see and hear. We are a great nation. We produced the most of the brightest people in the world. And we still can.

This issue does not only concern the rusty education system we have in our country. It’s about learning at home. It’s about cultivating your own abilities with whatever facilities you have. Sometimes, we can hone ourselves and our children within the four corners of our home. Truly, the family is the basic unit our society. And the values and education must suppose to start there.

In an article or interview, I’ve read that this beauty queen is a mass communication student in UE and that her taking up the course is her step into making a difference in her life. Not to be pessimistic about it, I know that habang buhay me pag-asa but I also know that it would be very hard to teach old dogs new tricks. She is 17 years old. She has hurdled elementary and high-school with that kind of English and answers. And so is the Ms. Fitrum contestant, I heard she was taking up nursing. I bet she wants to work abroad. She’s the same age as the beauty queen. I am saddened that these children have grown into the ladies they are now but they failed to work up their brains. Don’t get me wrong, intelligence is not only counted on your facility of the English language. It’s also about logic, analogy, simple bright responses to even the most unintelligible questions. Don’t be misled that I forsake our language. The point is, don’t try to be someone you are not. If you know you can’t speak fluent English, speak Filipino. Why, other countries have interpreters? The pressure however is that collectively, we Filipinos are known to speak clear English. I think that is where the pressure comes from. Personally though, the pressure must not be translated to overdoing it or trying it so hard. Instead, it must be constructively translated to developing oneself. Read more. Study more.

I do not forsake our language. I know that even our national hero, Jose Rizal, does not mean we should restrict ourselves with our native tongue. He himself embraced a lot of language. He was multi-lingual. His mother was his very first teacher. The point is, he needed to study those languages because his mother knew that that will equip him to survive during those times. Times are changing, and the way technology is going, the world is becoming a smaller and smaller. I wouldn’t want my children to be left dumbfounded when they happen to be surrounded by people speaking the universal language. English is our common ground with the other nations. And I believe we are still one of the best English speakers. What Jose Rizal probably meant was we as a nation, must not deny our lineage, our culture, our language. While we conquer the world speaking fluent English, we must not deny that we are Filipinos. We are Filipinos. And the slang tongue we may have acquired in many years of living abroad would not and should not make us feel less a Filipino. I admire those parents who have found greener pasture abroad but have raised their children the Filipino way. We can do that.

Right now there is a collective clamor to uplift the lives and better the future of the Filipino youth. We need not pay a high price. At the moment, the Philippines is a picturesque of poverty, hunger and illiterate youth. It's saddening fate that we can still change by making the first step at home.

Mama and Papa, thank you for teaching me the rudiments of proper youth here less to worry about.

Monday, June 9, 2008

International Law


Essentials on the law of extradition

Among the fundamental rights of a State recognized under established principles of international law, are the rights of sovereignty and independence. It is also by virtue of these inherent rights that a State is invested with authority to enforce its laws within its territorial jurisdiction. However, taking into consideration the development of the international community of nations, States seek mutual cooperation and assistance, not only in the maintenance and promotion international peace and security, but also in the enforcement of their national laws in particular cases.[1] One of the most important developments under modern international law pertaining to jurisdictional assistance is Extradition. This mechanism is a product of shared common interest among states in the maintenance of law and order in the international community, which as result, States cooperate with one another by surrendering fugitive criminals to the State in which the crime was committed. To be more precise, extradition has been defined as “ the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and to punish him, demands the surrender.”[2] Simply put, extradition is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. It does not apply however to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.[3] Be it noted that extradition involves a combination of diplomatic, administrative and judicial procedure whereby a fugitive from justice found in one state is surrendered to the state from which the fugitive fled. Clearly, in a world of increasing mobility of people across national borders and with the development of the means of travel and communication, the purpose of extradition is to facilitate the prosecution of suspected criminals or to insure the punishment of convicted criminals. In short, it seeks to promote criminal justice by refusing safe haven to criminal fugitives.
Since there is no existing customary international law specifically governing the conduct of extradition, it is imperative to know its basis under international law. Extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. Accordingly, in the absence of such extradition treaty, the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national. If, notwithstanding this right, the surrender requested is still effected by the state of asylum, it is not because of a demandable duty on its part but in pursuance of policy or as a gesture of comity.[4] But since States are jealous of their territorial sovereignty, it is difficult to assume that States by way of comity will surrender a person found in their territorial jurisdiction to another state in the absence of a treaty between them. Thus, it is safe to assume that under international law there is no obligation to extradite unless there is an extradition treaty.

Hugo Grotius as early as 1625, recognized the social necessity and duty under the natural law, that a state either punish such fugitive criminals itself or else surrender them to the state whose laws were immediately concerned in bringing the offender to justice. Regarded as moral duty and courtesy, extradition however did not become a legal obligation until states began to enter into special treatise providing for the surrender of particular fugitives although apart from these treaty arrangements states frequently surrendered fugitives by voluntary act.[5] But States adopted no uniform rule, likewise there was no universal rule of customary international law in existence which imposes the duty of extradition. In the second half of the nineteenth century there was an urgent need of offsetting the greater facilities for the escape of criminals due to the modern methods of transportation. Extradition treaties of a more general nature, covered stipulated crimes and applicable to offenders. By the opening decade of the twentieth century up to the present time, the scope of these treaties had widened greatly. Extradition treaties are generally bilateral in character, and there was a noticeable lack of uniformity in their provisions and in their interpretation. By way of exception, the delivery of fugitive criminals in the absence of a treaty still takes place on occasion as an act of international comity but not as a legal obligation.[6] Classical commentators on international law focused their early views on the nature of the duty to surrender an extraditee, whether the duty is legal or moral in character. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. In sharp contrast, Puffendorf and Billiot led the school of thought that the so-called duty was but an imperfect obligation which would become enforceable only by a contract or agreement between states.[7] State practice in these modern times favor the view laid down by Puffendorf and Billiot that under the law of nations there is no duty to extradite in the absence of a treaty, whether bilateral or multilateral.

A. General Principles Governing Extradition
In the absence of uniform rule on extradition, States practice, as well treaty stipulations have certain common characteristics and conditions otherwise known as fundamental principles of extradition. As generally observed, the following are the recognized fundamental principles of extradition: (1) that there is no legal obligation to surrender a fugitive unless there is a treaty; (2) religious and political offenses are generally not extraditable; (3) a person extradited can be prosecuted by the requesting state only for the crime for which he is extradited and (4) unless provider for in a treaty, the crime for which a person is extradited must have been committed in the territory of the requesting State.[8]
Among these principles, the most controversial is the “ Doctrine of Political Offense,” possibly because political offenses have never been precisely defined.

B. The Doctrine of Political Offense
As stated above, political offenders are generally not subject to extradition. In order to constitute an offense of a political character the British court held that, “ there must be two or more parties in the state, each seeking to impose the government of their own choice on the other.”[9] Hence, an admitted anarchist who fled to England after bombing a Paris restaurant and a military barracks was held to be extraditable since he was considered not a political offender but an enemy of all governments.[10] The origin of this principle is traced to the time when democratic governments in the nineteenth century refused to surrender individuals who fled political or religious persecution launched by autocratic states. Nevertheless, the doctrine of political offense is well supported by the following reasons: (1) the political offender deserves humanitarian treatment. Extradition law proceeds on the premise that the protection of the lives and property of individuals produce a common interest in the repression of crimes violating them. But the element of common interest is absent in political offenses, because legal and value systems differ; (2) the political offender possesses the right to revolt against tyranny, and if this right is to be meaningful, then in case of failure he should be entitled to political asylum. The rise of totalitarianism in the twentieth century has in certain instances rendered revolt morally obligatory, and the struggle for the independence by oppressed peoples has in certain situations given rise to a justification for rebellion; (3) the principle of neutrality and non interference in the internal affairs of another state dictates that where there is a “contest” between the government and a segment of a population, the political offender should not be extradited. For if the political offender is surrendered, the asylum state thereby assists one of the parties in the struggle and becomes a partisan in the civil strife. Under the political offense doctrine, the asylum state avoids dangerous decisions on the legality and the conduct of a foreign government.[11]

C. The Principle of Specialty
Under this principle, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty. It must be stressed that, if a fugitive criminal is charged with any other offense committed before his escape, the state of refuge and not the accused has a right to object, nevertheless the prosecution will be allowed if the extraditing state agrees or does not complain. According to some writers on international law, this principle is strictly administered in actual practice, as correctly suggested there seems to be greater concern for the protection of the fugitive criminal than for the local community whose law has been violated.[12]

D. Principle of Double Criminality
This principle is a necessary consequence of extradition treaties because of different legal systems in the world. The principle of double criminality means that extradition is only available when the act is an offense in both jurisdiction. It need not have the same name, but it must be criminal in both systems.[13]

E. Attentat Clause
Under the attentat clause, the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. A notable example was the adoption of the United States of the attentat clause in its extradition treaty with Belgium after the assassination of President Garfield.

Procedure in the Philippines[14]
The applicable law on Philippine extradition procedure is Presidential Decree No. 1069 which took effect on January 13, 1977. Upon request by a foreign state through its diplomatic representatives, the the Ministry of Foreign Affairs (now DFA) shall forward the request to the Ministry of Justice, (now Secretary of Foreign Affairs) together with all documents and papers.
The Ministry of Justice in turn shall forward the request together with pertinent papers to the proper Regional Trial Court, designating an attorney to take charge of the case by filing the proper petition in court. Upon filing of the petition, the RTC will issue summons or issue a temporary warrant of arrest to compel the appearance of the accused.
A hearing will then be conducted by the Regional Trial Court, which shall provide the accused with a counsel de officio if he has no counsel. The decision granting the petition for extradition of appeals may be appealed to the Court of Appeals within ten days.
The decision shall be forwarded to the Ministry of Foreign Affairs through the Minister of Justice. The accused shall be placed at the disposal of the authorities of the requesting State or government. The costs and expenses incurred in the extradition proceedings shall be paid by the requesting State or government.
If the request is granted, the requesting State is informed of the date and place of the surrender, and of the length of time for which the person was detained. Expenses of the requested State by reason of the extradition are reimbursed by the requesting State, unless otherwise agreed. Transit through a third State is usually permitted on request, unless the offense charged is considered as a political offense and non-extraditable in that State.

[1] Coquia, International law and World Organization, 2005 edition
[2] Terlinder v. Ames, 84 U.S.270 (1902)
[3] Weston, International law and Order, 2nd ed. P.630
[4] Cruz, International law 2000 edition
[5] Coquia, Extradition As A Jurisdictional Cooperation between States, 332 SCRA 238
[6] Ibid.
[7] Dissenting Opinion, Puno, J., in Secretary of Justice v. Lantion ( January 18, 2000)
[8] Coquia, 340
[9] Cruz, citing In re Meunier, 2 Q.B. 415 (1894)
[10] Ibid.
[11] Defensor-Santiago, Identifying Political Offenses, 56 Phil. L.J. 395 (1981)
[12] Salonga and Yap, Public International Law, 1992 edition
[13] Cruz, p.204
[14] Coquia, p.344

International Law (The Law on Extradition [Part 2])

Extradition vis-a-vis constitutional rights of individuals

A) Due Process Rights of Notice and Hearing
The seminal case of Secretary of Justice v. Lantion[1] was the first case decided by the Philippine Supreme Court dealing with extradition. This case was bound to be controversial for it involves due process rights of notice and hearing guaranteed by the constitution. The main issue to be resolved in this case was whether or not the private respondent is entitled to notice and hearing during the evaluation stage of the extradition process. The Secretary of Justice for its part argued that such demand for notice and hearing was premature because the Philippine government was still evaluating the American request and no complaint for extradition has yet been filed against the prospective extraditee. The Supreme Court speaking through Justice AR Melo ruled in favor of private respondent. The court in sustaining the two basic due process rights of private respondent, considered the evaluation process akin to an administrative agency conducting an investigative proceeding the consequences of which, according to the court, are essentially criminal. As such jurisprudence dictates that the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Hence, private respondent is entitled to these indispensable basic rights during the evaluation stage of extradition proceedings. However, upon motion for reconsideration the court reversed its previous decision. This time, the court speaking through Mr. Justice Reynato Puno held that extradition is a sui generis proceeding. [2]According to the court, the determination as to whether an individual should be extradited is not a criminal proceeding where a suspect is entitled to all the constitutional rights of an accused. The process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Then the court proceeded to say, that as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee, especially by one whose extradition papers are still undergoing evaluation. To further support its theory the court cited the differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceeding involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding our courts may adjudge an individual extraditable but the president has the final discretion to extradite him.
This latest pronouncement of the court signifies the intention of the Philippine government to comply with its treaty obligations under international law. Obviously, the court is confronted with a very delicate situation involving two equally important competing interests, and that is, citizen’s basic rights of due process vis a vis ironclad duties under a treaty. The court in tilting the balance in favor of the interests of the State, had this to say, “ The extraditee’s right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extradites which can be precipitated by premature information of the basis for his request for extradition. x x x In sum, we rule that the temporary hold on private respondent’s privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured.”[3]

B) The Right to Bail
The right to bail flows from the right to be presumed innocent. In general, the right to bail is a constitutional right which properly belongs to the accused in criminal proceedings, utilize as a means to obtain immediate liberty. The constitutional foundation of this right is found under Article III, Section 13 of the 1987 Constitution which states that, "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable..." From the wordings of the Constitution, it seems that the right to bail only applies to cases which are criminal in nature. Thus, the provision speaks of "before conviction" presupposing conviction in criminal cases and is clearly unavailable in proceedings which are administrative in nature i.e. deportation proceedings. (Tiu Chan v. Board of Deportation, 99 Phil. 1028 [1956]) As discussed above, extradition proceeding is neither criminal nor administrative in nature but a sui generis proceeding meaning, a class of its own. More importantly, extradition involves treaty obligations and commitments with other contracting states thus making it more delicate if not complicated. To settle the issue once and for all, the Supreme Court has taken a hollistic approach to strike the proper balance between two competing interests, the constitutional right to bail of a prospective extraditee and compelling treaty obligations of the State.
In the case of Government of the United States v. Hon. Purganan[4] the court had the occasion to resolve the issue as to whether or not extraditees are entitled to the right to bail and provisional liberty while the extradition proceedings are pending. Private respondent (extraditee) invoked the constitutional provision under the 1987 Constitution, that persons are entitled to bail except those charged with offenses punishable by reclusion perpetua or death when evidence of guilt is strong.[5] The court, in rejecting the claim of private respondent held that said constitutional provision is applicable only in criminal cases but not to extradition proceedings. Again, the court reiterated its pronouncement in the Lantion case that the “ Ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition treaty, and whether the person sought is extraditable.”[6] Equally important, is the pronouncement that the court of the requested state has the discretion to grant or deny bail and that as a rule bail is not a matter of right in extradition cases. But the court enunciated that there are exceptions to this rule if only to serve the ends of justice, (1) once granted bail, the applicant will not be a flight risk or danger to the community; (2) that there exist special, humanitarian and compelling circumstances. Having no statutory basis the applicant bears the burden of proving these exceptions with clarity and precision. Unfortunately, the court exercised its discretion in denying bail to private respondent who considered him as a “flight risk” when he fled the United States after learning of the criminal charges filed against him. However in the recent case of Government of Hong kong v. Olalia (G.R. No. 153675, April 19,2007) the Supreme Court proposed a more stringent standard in determining the right to bail in extradition cases. Thus, culling from the Separate Opinion of then Justice Reynato Puno in Purganan, the court ruled in this wise, "...clear and convincing evidence should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable but higher than preponderance of evidence. The potential extraditee must prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court." What is more significant in the Olalia case is the straightforward ruling of the court extending the right to bail even to proceedings which are not criminal in nature. In justifying its ruling, the court cited inter alia, the age-old case case of US v. Sioco where the right to bail was recognized in a deportation proceeding because "while deportation is not a criminal proceeding, some of the machinery used is the machinery of criminal law." The court also cited relevant customary international laws such as The Universal Declaration of Human Rights and the International Covenant of Civil and Political rights, to further strenghten the right to liberty of individuals against the vast power of the State.

The Supreme Court decisions cited above are considered landmark decisions in Philippine jurisprudence pertaining to extradition. What is more important to note is the fact that the issues involve are issues of paramount importance, a controversy that strikes at the very heart of the nation. True, it is difficult to reconcile conflicting interests especially when constitutional rights of individuals and state’s treaty obligation under international law clash with each other. The usual approach of the Supreme Court when the conflict is irreconcilable and apparent is to apply the so-called “balance- of- interest test.” This approach traditionally applies to freedom of expression cases involving for example, national security matters against improvident exercise of freedom of expression. Obviously the latter right must yield. This test has not found favor with many libertarians because in effect it allows the court to decide what freedom may not be enforced unless they believe it is reasonable to do so.[7] Ironically, the Supreme Court in Lantion used this yardstick in determining what interests should be upheld, whether the constitutional rights of individuals or treaty obligation under international law. This development in Philippine constitutional law must be re-examined in the light of Lantion ruling. It is not difficult to perceive that the court will tend to favor authority by applying the “balancing of interest test” in resolving constitutional issues. This is a dangerous path if left unchecked.
The decision in Lantion enunciating that extradition proceeding is a sui generis one is a clear circumvention of the safeguards enshrined under the Bill of rights. It is a panacea to all constitutional questions pertaining to extradition involving basic due process rights of notice and hearing. It is the contention of this writer that for the sake of preserving the integrity of the constitutional rights embodied in the fundamental law, due process rights of notice and hearing should be recognized even during the evaluation stage of the extradition proceeding. The court in ruling against private respondent failed to discern that extradition is part of the international criminal process whose sole purpose is to punish the guilty. In the same vein, extradition is a sovereign state’s cooperation in the criminal process of another sovereign state. Clearly, extradition is a mechanism or tool of criminal justice in the international scale. Having said this it is hard to agree with the decision of the court that basic rights and safeguards embodied in the bill of rights do not become operative in an extradition proceeding. Likewise, it is a settled principle of constitutional law that within the domain of municipal law, the Constitution is the supreme law of the land. Under the doctrine of incorporation treaties are given a standing equal, and not superior to national legislative enactments. In fact in the case of Philip Morris, Inc v. Court of Appeals[8] the Philippine Supreme Court ruled that the fact that international law has been made part of the law of the land does not by any means imply the primacy of the international law over the national law in the municipal sphere. Clearly therefore, extradition treaty as domestic law cannot be superior to the Constitution. In interpreting provisions of a treaty one cannot depart from the constraints and limitations of the Constitution by saying, like in the case of extradition, that extradition rules are sui generis. Finally, the government should always bear in mind that the cherished liberties guaranteed by the Constitution are non-negotiable rights. In the words of Justice Isagani Cruz, “ while authority and liberty must co-exist, the highest function of authority is to exalt liberty.” In light of the recent Olalia case, this writer respectfully posits that the original ruling laid down in Lantion should be reinstated for being in consonance with the libertarian principle of justice.
[1] G.R. No. 139465, January 18, 2000
[2] Secretary of Justice v. Lantion 343 SCRA 377 (2000)
[3] Ibid.
[4] 389 SCRA 623 (2002)
[5] Art.3 sec.3 of the 1987 Constitution
[6] Ibid.
[7] Cruz, Constitutional Law, 2000 ed.
[8] 234 SCRA 576

Tuesday, June 3, 2008


Prior to the enactment of R.A. 7160[1] otherwise known as The Local Government Code of 1991 (LGC for brevity), the governing laws on barangay justice system were P.D. 1580[2] and The Local Government Code of 1983. Substantial provisions of the erstwhile laws were retained if not reproduced in verbatim under the current law[3]. Moreover under the revised Katarungan Pambarangay Law jurisdiction has been expanded to include a wider range of cases.[4] It likewise bears noting that some minor procedural changes have been incorporated in order to accomplish and safeguard its substantive purposes.

To appreciate more vividly the letter and spirit of this novel innovation, a perusal of the “Whereas” clauses of P.D. 1508 is apropos. The preamble of said law envisioned the following noteworthy objectives. To wit;

WHEREAS, the perpetuation and official recognition of the time-honored tradition of amicably settling disputes among family and barangay members at the barangay level without judicial recourse would promote the speedy administration of justice and implement the constitutional mandate to preserve and develop Filipino culture and to strengthen the family as a basic social institution;
WHEREAS, the indiscriminate filing of cases in the courts of justice contributes heavily and unjustifiably to the congestion of court dockets, thus causing a deterioration in the quality of justice;
WHEREAS, in order to help relieve the courts of such docket congestion and thereby enhance the quality of justice dispensed by the courts, it is deemed desirable to formally organize and institutionalize a system of amicably settling disputes at the barangay level;

It is axiomatic that a preamble is not an essential part of a statute much less a condition for its effectivity. Nonetheless it is imperative to note that “whereas clauses” state the reasons and objectives of the enactment. As may be gleaned from the above-quoted clauses, the salient noble purposes of Katarungan Pambarangay Law are; (1) to obtain a just, speedy and inexpensive settlement of disputes at the barangay level (2) to preserve Filipino culture and traditions concerning the amicable settlement of disputes (3) to relieve the courts of docket congestion and thereby enhance the quality of justice dispensed by them. In the light thereof, it is undoubted that the heart of this law is geared towards peace and harmony within the community and to afford accessible and effective form of justice for community members. Viewed in a different angle, through mediation, conciliation, or arbitration at the barangay levels, courts will be relieved of docket congestion which has been considered a perennial setback for the Philippine justice system. In the same vein, expensive and wearisome court litigation is prevented and reduced at least gradually. Indeed, as pronounced by no less than the Supreme Court in the case of Uy v. Contreras[5], “the katarungan pambarangay law plays a vital role in the delivery of justice at the barangay level, in promoting peace, stability, and progress, and in effectively preventing or reducing expensive and wearisome litigation.” Furthermore in Lupitan Pang-et v. Manacnes-Dao-As[6] the court held that, “the object of the Katarungan Pambarangay Law is the amicable settlement of disputes through conciliation proceedings voluntarily and freely entered into by the parties. Through this mechanism, the parties are encouraged to settle their disputes without enduring the rigors of court litigation.” And in Galuba v. Laureta,[7] the Court in interpreting P.D.1580 declared,

The primordial objective of P.D. 1508 is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. To allow court actions assailing unrepudiated amicable settlements would exacerbate congestion of court dockets. This is repugnant to the spirit of P.D. 1508 x x x

There are also instances wherein the Court is being confronted with issues relating to the authority of Lupon vis a vis inferior courts. Nevertheless, the Court in resolving the issue resort to inter alia the intent of the law as envisioned by the lawmakers set forth in the preamble (whereas clauses of P.D. 1508). As held in Morata v. Go,[8] the Court through the masterful pen of Justice Escolin said,

By compelling the disputants to settle their differences through the intervention of the barangay leader and other respected members of the barangay, the animosity generated by protracted court litigations between members of the same political unit, a disruptive factor toward unity and cooperation, is avoided. It must be borne in mind that the conciliation process at the barangay level is likewise designed to discourage indiscriminate filing of cases in court in order to decongest its clogged dockets and, in the process, enhance the quality of justice dispensed by it. Thus, to say that the authority of the Lupon is limited to cases exclusively cognizable by the inferior courts is to lose sight of this objective. Worse, it would make the law a self-defeating one. For what would stop a party, say in an action for a sum of money or damages, as in the instant case, from bloating up his claim in order to place his case beyond the jurisdiction of the inferior court and thereby avoid the mandatory requirement of P.D. 1508? And why, indeed, should the law seek to ease the congestion of dockets only in inferior courts and not in the regional trial courts where the log-jam of cases is much more serious? Indeed, the lawmakers could not have intended such half-measure and self-defeating legislation.
x x x
The objectives of the law are set forth in its preamble thus:
x x x
There can be no question that when the law conferred upon the Lupon “the authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes, . “ its obvious intendment was to grant to the Lupon as broad and comprehensive an authority as possible as would bring about the optimum realization of the aforesaid objectives. These objectives would only be half-met and easily thwarted if the Lupon’s authority is exercised only in cases falling within the exclusive jurisdiction of inferior courts.

This is only one of those instances wherein the court harmonizes the letter and intent of the Katarungan Pambarangay Law to achieve the desired primordial objectives of the law.
Given the above perspective, it is pristine clear that in interpreting the provisions of Katarungan Pambarangay Law serious considerations must be given to the noble intent of the lawmakers. The preamble therefore, is the key to open the minds of the makers of the law. It is especially helpful when the ambiguity is not simply that arising from the meaning of particular words, but such as may arise in respect to the general scope and meaning of a statute. However it must be emphasized that the letter of the law is equally important and should prevail under certain circumstances to prevent miscarriage of justice. In fact, it is essential to note that legislative intent is determined primarily from the language of the statute which accordingly, affords the best means for its exposition. Hence, when confronted by procedural ambiguities of the law specifically in barangay conciliation proceedings, and strict compliance thereof will result to injustice, legislative intent now comes into play. Failure to apply the following constructions will definitely undermine and delay the dispensation of barangay justice.
It must be borne in mind that this “landmark legislation” should never be made dependent on the whims and caprices of public officials tasked to enforce it. In any event, public officials (especially Barangay Chairmen) who are duty bound to implement this law are obligated to respect and “be informed” of pertinent jurisprudence on this matter. It is for this purpose that Article 8 of the New Civil Code is relevant when it enunciates that,” Judicial decisions applying and interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” Contemporaneous interpretation of laws form part of the law as of the time of their enactment. They assume the authority as the statute themselves. They are what the laws mean. They merely establish the contemporaneous legislative intent that the construed laws purport to carry into effect.[9] In sum, while it is conceded that public officials are not strictly bound to the rules of statutory construction, they might as well utilize these rules as instrument to effectively discharge their duties and functions under the law, and that is the dispensation of genuine barangay justice.

[1] Took effect on January 1, 1992
[2] Establishing a System of Amicably Settling Disputes at Barangay Level, enacted on June 11, 1978
[3] Sections 4 and 6 of P.D.1508 have been reproduced in Sections 410 (b) and 412 of R.A.7160
[4] 1. It increased the authority of the lupon in criminal offenses from those punishable by imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508 to those offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00.
2. As to venue, it provides that disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.
3. It provides for the suspension of the prescriptive periods of offenses during the pendency of the mediation, conciliation, or arbitration process. Paragraph (c) of Section 410 of the law, however, suffers from some ambiguity when it provides that the prescriptive periods "shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary." What is referred to as receipt by the complainant of the complaint is unclear; obviously, it could have been a drafting oversight. Accordingly, in the above quoted Section 11 of the Rules and Regulations issued by the Secretary of Justice, the phrase "the complaint or" is not found, such that the resumption of the running of the prescriptive period shall, properly, be from receipt by the complainant of the certificate of repudiation or the certification to file action issued by the lupon or the pangkat secretary. Such suspension, however, shall not exceed sixty days. (Uy v. Judge Contreras, G.R.No.111416 sept.26,1994)
[5] G.R. No. 111416, September 26, 1994
[6] G.R. No. 167261, March 2, 2007
[7] G.R. No. 71091, January 29, 1988
[8] G.R. No.L-62339, October 27, 1989; see also Montoya v. Escayo, G.R. No. 82211-12 (1989)
[9] Floresca v. Philex Mining, L-30642, June 30 1985

Tuesday, April 29, 2008

Consti 101

The Imperatives of a living Constitution

Let us now discuss the importance of a constitution not only in terms of its legal implications but as well as its ramifications in any given society. A constitution in ordinary parlance, is the supreme law of the land and as such all laws must bow to its mandate. Laws to be valid must be in harmony with the provisions of the fundamental law otherwise it should be struck down for being unconstitutional. In defining the exact definition of a constitution and as accepted in Philippine constitutional law, Justice Miller of the American Supreme court has this to say, “ A constitution is a written instrument by which the fundamental powers of government are established, limited, defined, and by which these powers are distributed among several departments, for their safe and useful exercise, for the benefit of the body politic.”[1] This definition explains that the primary purpose of a constitution is both a grant and a limitation of government authority. It prescribes the permanent framework of a system of government, and in doing so, every branch of government has its own respective powers and duties to be performed based on established fixed principles on which government is founded. A more comprehensive definition is that of Justice Cooley, which defines a constitution as “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”[2] Both definitions are essential for no matter how complex the concept of constitutionalism is it helps us understand the basic rudiments of the term. But one may ask, what is exactly the role of the people in enacting a constitution? Certainly, they are the creators of this written instrument. In the landmark case of Marcos v. Manglapus[3] the Supreme Court had the occasion to enunciate that, “ The constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered the sovereign powers of the state for the common good. Hence, lest the officers of the government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that sovereignty resides in the people and all government authority emanates from them.” On this premise, it must be borne in mind that that in a representative government the people are declared supreme and every citizen is an individual repository of sovereignty. The court speaking through the eminent constitutionalist Justice Laurel,” An enfranchised citizen is a particle of popular sovereignty and is the ultimate source of established authority.”[4] In other words, every citizen of this country plays a vital role in our democratic society. Whether he is a peasant or a millionaire in his mansion, his existence and participation in the affairs of the state is an indispensable element to insure the survival of a democratic polity.
The constitution being the supreme and fundamental law of the land, acts of congress particularly the enactment of laws, must be always in consonance with the provisions enshrined in the fundamental law. (Commonly known as Statutes) In a word, the Constitution is a kind of higher law. Although the provisions of the Constitution are like statutes in that they are written, contained in a document and do not come into being by way of custom or court decisions, they are not statutes in being enacted or subject to nullification by legislatures alone. The provision of the Constitution, are the law for the lawmakers so to speak, or, more broadly, a law for those who govern.[5] In the same vein, the judiciary is tasked not only to interpret the law but more so, to defend the Constitution against any possible violation of its sacrosanct provisions. This can be done by virtue of the power of judicial review. Through this power, the judiciary can declare a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation unconstitutional.[6] Such function of the judiciary does not imply superiority over other departments of the government; in fact in Angara v. Electoral Commission the Supreme court ruled that, “ When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution.”[7] This sacred and solemn duty refers to the inevitable task of the Judiciary to uphold the supremacy of the Constitution at all times. The Doctrine of Constitutional Supremacy comes into play when a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or the executive branch or entered into by private persons for private purpose, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.[8] Moreover, in the words of Justice Isagani A. Cruz, “ The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer.” Then he proceeded to say,” No act shall be valid, however noble its intention, if it conflicts with the Constitution, the Constitution must ever remain supreme.”[9]

[1] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (Manila: Rex, 2003)
[2] Isagani A. Cruz, Constitutional Law (Manila: Central Lawbook Publishing Co., Inc.,2003)
[3] 177 SCRA 668 (1989)
[4] Moya v. Del Fierro, 69 Phil.199.
[5] Clarence B. Carson, Basic American Government, 1993 ed., p.56
[6] Sec. II (2), Art. VIII of the 1987 Constitution
[7] 63 Phil. 139 ( 1936 )
[8] Manila Prince Hotel v. GSIS 267 SCRA 408 ( 1997 )
[9] Ibid.