NOTES IN LEGAL RESEARCH

Legal Research – the inquiry and investigation made by law students, legislators, judges, lawyers, and legal writers in the discharge of their function. Its original meaning is the continuous repetition of search. To date, it still retains much of that meaning.

Legal research calls for the diligent, intelligent, continued search for something as proof to a legal stand. It involves: (1) choice of hypothesis, (2) ascertainment of facts, (3) their classification, (4) elimination of irrelevances, (5) the use of both inductive or deductive logic, and (6) assertion of a conclusion.

 

LEGAL RESEARCH TOOLS

Before embarking in the study of legal research, we must first study the tools we need in order to be fully equipped in its study. The tools are simply books—Law Books. Law books are the repository of the law.

Law books may be classified into what it deals principally:

1)      Those that deals with STATUTORY LAWS

2)      Those that deals with CASE LAWS

3)      and those that deals with both

 

…and according to class:

1)      PRIMARY AUTHORITY

2)      SECONDARY AUTHORITY

3)      SEARCH BOOKS OR LAW FINDERS

     

 

I. Statutory Law

            Statutory law refers to those rules enunciated by the competent authorities for the governance of the community. It does not only pertains to the enactment of the legislative department of the government (ex. RA passed by Congress and ordinances passed by the Sanggunians) but also those rules and regulation which have the force and effect of law (ex. BIR rules and regulations). It includes the constitution of the State, departments and other governmental rules, regulations, orders and decisions, the Rules of Court, treaties to which the state is a signatory and municipal and city ordinances.

• Classes of Statutory Law

1. CONSTITUTION – that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

i)          Biak na Bato Constitution (1899)

ii)         Malolos Constitution (

iii)         1935 Constitution

iv)        1943 Constitution

v)         1973 Constitution

vi)        1986 Freedom Constitution or Provisional Constitution

vii)        1987 Constitution

2. STATUTES – written expression of the will of the legislative branch of the government rendered authentic by certain prescribed forms and solemnities. They are enactments of the proper legislative body.

i)          General Statute – one which affects all the people or all persons or things of a particular class. It operates in all persons to whom it applies equally to all persons of the same category.

ii)         Special Statute – one which relates either to the particular persons or things or to particular persons as to their class which operates on a portion of a class instead of all the class. It is limited in scope and confined to a prescribed field of action or operation.

iii)         Local Statute – one which operates over a particular locality instead of the whole territory of the State. It applies to any subdivision of the State.

iv)        Public Statute – one which contains the interest of the public at large. It is enough that it concerns the public and not merely a private interest although it is “local and special”

v)         Private Statute – one which relates to the concerns and affects particular individuals.

3. CODE – complete system of positive law scientifically arranged and promulgated by legislative authority. Example: Revised Penal Code and Civil Code.

4. RESOLUTIONS – reenactments of the legislature employed either to express sentiment or opinions, carry out internal affairs of the legislative body, or to make temporary laws, or establish procedures for constitutional amendments. As a general rule, resolutions are NOT laws since laws refers to those legislative enactments which operate on persons in society, and must be enforced by the executive department and sustained by the court.

5. EXECUTIVE ORDERS, ADMINISTRATIVE ORDERS AND PROCLAMATIONS

            The power of the President of the Philippines to issue executive and administrative orders and proclamations is based on Article VII, Section 17: “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed of the Constitution”. These orders have the force and effect of laws and are secured of rights, duties and obligations.

6. GOVERNMENT DEPARTMENT RULES AND REGULATIONS

            The heads of various departments of the government, bureau heads and heads of governmental agencies are sometimes authorized by law to issue rules and regulations necessary to carry out effect of their powers and functions.

7. RULES OF COURT

            These are promulgated by the Supreme Court, governing practice pleadings and procedures before all tribunals. These rules have the force and effect of law if they are not in conflict with positive or substantive laws.

8. TREATIES – agreements or contracts between two or more sovereign nations or states entered into by agents appointed for the purpose and sanctioned by the authorities of the respective parties. In the Philippines, the treaty making power resides in the President to be concurred by at least 2/3 of all the members of the Senate

9. MUNICIPAL ORDINANCES – enactments of the legislative bodies of towns and cities with their territorial jurisdiction.

 

II. Case Law

            Case law is defined as the great class of official literary manifestation of law made of cases decided by courts and by persons or bodies performing judicial functions. Simply put, it refers to the compilation of published decision of cases.

            When the highest court of the land decides a case on its merits, it not only determines the rights of the parties to the case but also lays down legal principles as basis for its decision. These legal principles constitute authentic and authoritative exposition and interpretation of law, and become permanent rules of law applicable in all future cases in the same jurisdiction involving similar facts and analogous principles until it has been overruled by a subsequent decision on the same point. Judicial decisions, therefore, provide the second important set of rules which have the force and effect of law consisting of these legal principles emanating from the decisions of the courts of justice.

• Doctrine of STARE DECISIS

            The phrase “STARE DECISIS ET NON QUITA MOVERA” which means to stand by precedents and not to disturb settle points, expresses the policy of the courts and the principles when which it rests the authority of judicial decisions as precedents in subsequent litigations.

            The doctrine is frequently termed “the rule of stare decisis” and is in general to the effect, that when a point has been once settled by decision, it forms a precedent which is not afterward to be departed from a lightly overruled or set aside, even though it may seem archaic (antiquated). The rule for its object is the salutary effect of uniformity, certainty and stability in law.

            Stated in simple form and considered in relation to its effect of upon private affairs, the doctrine is really nothing more than the application of the doctrine of estoppels to courts decision. It finds it support in the sound principle that when the courts have announced to the guidance and government of individuals and the public certain controlling principles of the law or have given a construction to statutes upon which individuals and the public have relied in the making of contracts, they ought not after the principles have been promulgated and after these constructions have been published, to withdraw or overrule them.

            The doctrine of stare decisis is grounded in public policy and as such, is entitled to great weight and must be adhered to, unless the reasons thereof ceased to exist, clearly erroneous, or are manifestly wrong and mischievous, or unless more harm than good will result in doing so. It is vital that there be stability in the courts in adhering to the decisions deliberately made after ample consideration. Parties should not be encouraged to seek reexamination of determining principles and speculate on a fluctuation of law with every change in the expounders of it. The Supreme Court in the case of Secretary of Justice vs Judge Alfredo Catolico (68 SCRA 63) said: “Judges should be reminded of their duty to comply with the law as interpreted by the Supreme Court as the final arbiter of any justiceable controversy, and of the great mischief and, prejudice to the administration of justice and unnecessary inconvenience, delay and expenses to the litigants, that would as needlessly caused, should judges of lower courts dispose of cases in accordance with their personal views contrary to the final authoritative pronouncements of the Courts.”

            The doctrine, however, is not absolute but flexible, so that when in the light of changing conditions, a rule has been created to be of benefit and use of society. The courts may lightly depart from it. Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision. However recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience, the principle does not mean blind adherence to precedents. The doctrine or rule laid down no matter how sound it may be, if found to be contrary to law, must be abandoned.

• Case

            Ordinarily, a case is a controversy brought before the court for adjudication. As used in legal research, it refers to the published decision of a controversy decide by the appellate court including the reasons for the adjudication and usually has the following parts:

1. Docket number and date of the promulgation of the decision
2. Title of the case showing the names of the parties
3. Syllabi or Headnotes in which the reporter indicated the points decided

It consists of summary of statements of the points of law decided

4. Court a quo or the lower court from which the case originated
5. Names of the counsels for both parties
6. Brief statement of the nature of the case sometimes called as “Statement of Origin”
7. Statement of important facts
8. Statement of issues involved
9. Opinion of the court, wherein abstract or arguments of the parties may be included

            KINDS OF OPINION (OF THE SUPREME COURT)

1.      Per Curriam – opinion of the court in which all the justices are one of mind and so clear that they do not deem it necessary to elaborate by extended discussion. It is of so much weight and authority as any other opinion.

2.      Majority – majority of the opinion of the members of the court confirms totally to the opinion written by a member.

3.      Concurring – written separately by a member of the court who concurs with the result reached by the majority but of different reason.

4.      Dissenting – written disagreement with the judgment rendered by the court and subscribed to by a majority of the members.

5.      Divided – one where the Court en Banc is equally divided in opinion or where the necessary majority cannot be had or achieved.

6.      Obiter Dictum – opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of adjudication. It is an opinion expressed by a judge on a point not necessarily arising in a case. The doctrine of stare decisis contemplates only such points as are actually involved and determined in a case and not what the court or judge outside the record or on points not necessarily involved therein. Such opinion, being obiter dicta, do not become precedents.

An opinion which is concurred in by at least majority of the court ordinarily constitutes a precedent. If fewer than a majority concurs, there is no ruling opinion except as to the disposition from the case. The decision of a divided court is not a precedent.

10. Decision or determination of the rights of the parties
11. Judgment or formal order entered as a result of the decision

Decision of the Court is its judgment, while the opinion represents merely the reason for the judgment. An opinion is a statement by a court or judge of the reasons for the decision. Opinion is used either to mean the reasons set out by the court as basis for decision or the reason and conclusion reached taken together as one mental process. It consists of a statement of facts pertinent to the points of law involved, the application of legal principles, and an explanation of the ultimate action taken by the Court upon the relief prayed for. The opinion of the Court setting forth the reasons of their judgments, are the course, of great importance in the information they impart as to the principles of law which govern the court and should guide litigants. The Court’s reasoning in the body of the decision is an aid to the correct interpretation of the law as announced in the syllabus. While an opinion contains the view of the judge in relation to a given subject, a decision embraces the findings of a court, upon reaching a decree or judgment may be entered.

A decision of the court is the final conclusion reached by the judges or justices as to the application of the law to the facts of the case. While we pray that a decision is the judgment of the court, it is not the formal decree. It represents the result of the case, and maybe regarded perhaps as an order for judgment in that it determines the actual judgment or decree to be thereafter entered.

Judgment is the formal disposition of a case and is usually found in the dispositive portion of the decision. It may be contained in a short paragraph as for instance: “Wherefore, the petition for review is divided. The order of the Secretary of Justice dated January 29, 1998 is hereby affirmed. No pronouncement as to cost. So ordered.”

            The law which was a student has learned and which enabled him to be admitted to the Bar is mainly the result of the study of various classes and types of law books. But this knowledge alone is not sufficient to enable him to practice his profession successfully independent in the use of law books.

Although a lawyer is fully equipped by study, to start the practice of the legal profession, he soon finds that the knowledge stored in the memory is not sufficient to cope with the ever changing and ever expanding laws and legal principles brought about by the changes in the economic, social and political institutions.

We must not also lose sight of the fact that our legal system is an amalgram of Roman Law and the Anglo-American Legal System. To fully understand some of our laws may require and examination of law books written in the jurisdiction of origin which may run to hundreds of volumes.

It is also an undesirable fact that no person however profound his knowledge of the law maybe can rely solely on his memory or depend on common sense in finding solutions to legal problems. For one must be certain, he invokes a legal proposition, that is an accurate exposition of the law and that it has not been rendered obsolete or in applicable by the enactment of a new law or the enunciation of a new legal principal by a later court decision.

Consequently the successful lawyer must make the most use of law books. There are three classes of law book, namely:

1)      PRIMARY AUTHORITY - The official book published by the government

2)      SECONDARY AUTHORITY - Those that are written and published by the government.

3)      SEARCH BOOKS OR LAW FINDERS

 

A. Books of Primary Authority

            They are the authentic repositories of the law itself, that is, they are the repositories of the statutory law and judicial decisions. These books are referred to as repositories of the law because what is regarded as law for any given jurisdiction must necessarily be found in them. Hence, the publication which may be regarded as Books of Primary Authority are those which primarily contain the reproduction or exact copies of the Constitution, statutes, treaties, ordinances, governmental orders, regulations, rules of court and reports of judicial decisions. Ex. Supreme Court Reports Annotated and the Official Gazette

 

B. Books of Secondary Authority

            They comprises the various books written by text writers or commentators on the subject stating therein their comments, criticism, opinions and interpreted reinstatement of the law as founded on the books of primary authority. They are called books of secondary authority because their principal contents are personal views of their authors who might have construed or misapplied the law. Ex. The Civil Code of the Philippines, Vol. II, Property (Arts. 414-773) by Tolentino and The 1987 Philippine Constitution: A Commentary by Bernas.

 

C. Search Books or Law Finders

            Search books do not usually purport to give any information on what the law is except for a few. They do not contain any statement of legal propositions and in the latter case, the statements are in the form of very brief notes.

            As a rule, search books simply indicate to the researcher where he can find cases decided or contain to a general subject of law. In short, they are guide in giving the researcher explicit decision as to the road he must travel to search a certain goal or objective and indicating to him the clue which if followed correctly may lead him to the authorities he desires to find. Some of the most useful books belong to this class, such as indexes, citators and citation books, and various sorts of table of cases.

Suggested Answers to the Labor and Social Legislation BAR EXAMINATIONS 2006

This is a big help when I am reviewing for my Labor Standard Examination. Click here to download the Suggested Answers to the Labor and Social Legislation Bar Examinations Questions 2006.

LAWFUL INFIDELITY

CASE/FACTS:

A was a widow when she was employed in court. B, a married man but living separately with his wife, fell in love with A. B and A lived together in one house as husband and wife. They had children. They made a pledge before their religious congregation in the presence of their elders. C, a conservative citizen not related either to A and B file a complaint asking that A should be dismissed because of immorality.

ISSUE/PROBLEM:

Can A be administratively liable based on immorality? Can her defense as Jehovah’s Witnesses be an exception or can she invoke her religion as justification?

RULING/ANSWER:

COMMON LAW MARRIAGE

“A common-law marriage may be defined as non-ceremonial or informal marriage by agreement, entered into by a man and a woman having capacity to marry, ordinarily without compliance with such statutory formalities. Such agreement must be coupled by consummation, which includes at least cohabitation as husband and wife, and reputation in such a way that the public will recognize their marriage status. Common law marriages are not recognized in the Philippines because the Civil Code and the Family Code expressly and mandatory provide that intervention in a valid marriage ceremony of an ecclesiastical or civil functionary authorized by the state to solemnize marriage constitute one of the indispensable requisites for a valid marriage. Hence, the word “spouses” refers only to husband and wife lawfully married according to Philippine laws and the phrase “husband and wife” refers to parties who are lawfully married, unless the law provides otherwise.”1

IMMORALITY

On this discussion, I advance to précis the first part of the dissenting opinion of Justice Ynares-Santiago on the Estrada vs. Escritor2 case.

“The degree of morality required of every employee or official in the public service is high and strict. The Civil Service Law punishes public officers and employees for disgraceful and immoral conduct. Whether an act is immoral within the meaning of the statute is not to be determined by respondent’s concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns. The layman’s definition of what is “moral” pertains to excellence of character or disposition. It relates to the distinction between right and wrong; virtue and vice; ethical praise or blame. Moral law refers to the body of requirements in conformity to virtuous action consists. That which is not consistent with or not conforming to moral law, opposed to or violating morality, and now, more often, morally evil or impure, is immoral. Immoral is the state of not being virtuous with regard to sexual conduct. Hence, anything contrary to the standards of moral conduct is immoral. A grossly immoral act must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.”3

ADMINISTRATIVE LIABILITY

The facts of the case stated is similar to that of the 2006 case decided by the Supreme Court – Estrada vs. Escritor.

.
Alejandro Estrada filed an administrative complaint against Soledad Escritor on July 27, 2000 claiming that she is commiting “disgraceful and immoral conduct” under Book V, Title I, Chapter VI, Sec 46(b)(5) of the Revised Administrative Code, which provides:

Sec. 46. Discipline: General Provisions. –
(a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
..........(5) Disgraceful and immoral conduct;
................xxx.

Soledad Escritor, a court interpreter and member of the Jehovah’s Witnesses was accused of cohabiting with Luciano Quilapio, while they were still married to other persons. Their relationship of 23 years had borne a son. Respondent testified that when she was employed by the judiciary in 1999, she was already a widow and that her cohabitation with Quilapio had the approval of their sect as proven by a Declaration of Pledging Faithfulness.4 By virtue of this, their union was legitimized. Hence, their cohabitation is not immoral and they remain good members in their congregation.

.
The court in order to determine whether respondent’s invocation of his religious beliefs and/or right referred to Article III, Section 5 of the Philippine Constitution, which provides:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

The Supreme Court on their decision on the same case dated August 4, 20035, favored Escritor and remanded the case to the Office of the Court Administrator and ordered the Solicitor General to examine her claimed religious belief and practice and to prevent evidence in justifying an exception to prevailing law and jurisprudence governing illicit relations.

.
In remanding the case, the court said that the government should intervene in the matter to examine the sincerity and certainty of Escritor’s disputation, look into whether there is evidence on the state’s compelling interest to override such contention and show the means the state adopts in pursuing its interest is the least restrictive to her religious freedom.

.
The Supreme Court upheld Escritor’s right to conjugal union as it chose to adhere to the “benevolent neutrality approach in the Constitution that gives room for accommodation of religious exercises as required by the Free Exercise Clause.6 They rule that under distinct circumstances, Ecritor’s cohabitation with Quilapio cannot be penalized as she made out a case for exemption from the law based on her fundamental right of freedom of religion. There is no violation of any law or rule as this would be an unconstitutional violation of their religious freedom.

.
In ruling that the “compelling state interest” test to be the applicable test in determining the State’s action in interfering with action pursuant to religious convictions has inquire into the “sincerity” of the beliefs of the party claiming such; determines what compelling state interest there is, if any, to interfere with the practice of religion; and the sanction to the means that intrude least into the free exercise of religion and that are proportionate to the attainment of a public and legal goal.

.
Simply put, Supreme Court ruled that couples living together without marrying are not immoral if their religion allows it.

.
In a voting decision of 9-5, Chief Justice Artemio Panganiban warned that the ruling could open the floodgates for people to use religion as an excuse to enter into illegal and immoral conjugal union. “The majority opinion will make every religion a separate republic, making religion a haven for criminal conduct that otherwise would be punishable under the law of the land. Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine poised by the majority opinion,” said Associate Justice Antonio Carpio in a dissenting opinion. He cited US jurisprudence in warning that such a sweeping decision would “make professed doctrines of religious belief superior to the law of the land” and, in effect, “permit every citizen to become a law unto himself.”

.
“This case is about a religious cover for an obviously criminal act,” the dissenters said.

.
In her separate opinion, Associate Justice Consuelo Ynares-Santiago sought for the suspension of Escritor for six months for her disgraceful conduct in court. “The exacting standards of ethics and morality imposed upon court judges and court employees are required to maintain the people’s faith in the court as a dispenser of justice, and whose image is mirrored by their actuations,” she said. “The high degree of moral uprightness is demanded of employees of the government and entails many sacrifices that are peculiar to the civil service,” she added.

The far reaching significance of this case decision is that if Escritor is not a Jehovah’s Witness, her actuations and behavior would indeed constitute disgraceful and immoral conduct, as well as adultery and concubinage, under prevailing law and jurisprudence.

_______________________________________
1 Melencio S. Sta. Maria, Persons and Family Relations Law, 4th ed., Philippines: Manila, 2004, pp. 122-123.
2 A.M. No. P-02-1651. June 22, 2006. 492 SCRA 1.
3 Id., pp. 92-94.
4 DECLARATION OF PLEDGING FAITHFULNESS

..........I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.
..........I recognize this relationship as a binding tie before ‘Jehovah’ God and before all persons to be held to and honored in full accord with the principles of God’s Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union.
..........Signed this 28th day of July 1991.
5 Estrada vs. Escritor. A.M. No. P-02-1651. August 4, 2003
6 Art.III, Sec. 5. of the 1987 Philippine Constitution: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.

.

.

REFERENCES:

• Sta. Maria, Jr., Melencio S. Persons and Family Relations Law. 4th ed. Philippines: Manila. 2004.
• Estrada vs. Escritor. A.M. No. P-02-1651. June 22, 2006. 492 SCRA 1.
• Requejo, Rey E. Supreme Court says living-in not immoral. Manila Standard Today. June 23, 2006.

.

Note: Submitted to Retired Judge Illuminado Meneses. This is my Legal Research Paper No. 5.

An Encounter with A Fellow

This night, while I am heading to Bon Angelo Cyberzone after coming from my wednesday class (Property), a group of student called me “Ma’am Lamsen, Ma’am Lamsen.” I turned and saw PSU students, 2 of them familiar and turned out to be scholar grantees under my boss’ scholarship program. We did some chit chat and bid goodbye. As I walk away from them, I smile which I still wear up to this time of typing this entry. I just thought that those students call me “madam” or “ma’am” when in fact, I, too, is a student. I couldn’t expound what I feel and realize at this moment. I just hope that this evening, I was able to inspire others.

Reapportionment in Pangasinan: House Bill 4267

It is disappointing that because of political interest of local officials, which is tantamount to their personal interest, large scale development is hindered.

Last Monday, September 1, 2008, the Sangguniang Panlalawigan of Pangasinan rejected House Bill 4267: “An Act Reapportioning the Province of Pangasinan into Seven Legislative Districts” authored by 2nd District Representative Victor Aguedo E. Agbayani and co-sponsored by 3rd District Representative Rachel Arenas and 1st District Representative Arthur Celeste, who, however, withdrew later his sponsorship. The provincial board, in Provincial Resolution No. 770-2008 or known as a “Resolution strongly opposing House Bill 4267”, shot down the plan citing that the reapportionment is unconstitutional because of its gerrymandering character, it lack local consultations and is seen as politically-motivated move.


GERRYMANDERING

Second District Board Member Von Mark Mendoza branded the proposal of the bill as a politically-motivated move because of suspicious realignment of towns that seems to defy geographical locations.

At present, the localities under the first district are Bolinao, Anda, Agno, Bani, Alaminos City, Sual, Mabini, Burgos, Dasol and Infanta; second district comprises Labrador, Lingayen, Binmaley, Bugallon, Aguilar, Mangatarem, Urbiztondo and Basista; and San Carlos City, Bayambang, Malasiqui, Sta. Barbara, Mapandan and Calasiao are in the third district.


Under the redistricting bill, the first district will be composed of Bolinao, Anda, Agno, Bani, Alaminos City and Burgos; and under second district are Sual, Mabini, Dasol, Infanta, Labrador, Lingayen and Binmaley. Geographically, the towns of Mabini, Dasol and Infanta which are located south-west of Pangasinan will be displaced as the three are about two hours away from Lingayen. The third district will be composed of San Carlos City, Bugallon, Aguilar, Mangatarem, Urbiztondo and Basista; while the fourth district will be composed of Bayambang, Malasiqui, Sta. Barbara, Mapandan and Calasiao. The current fourth, fifth and sixth districts will become fifth, sixth and seventh districts.


Sec 5(1), Article VI of the 1987 Philippine Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

The underlying principle behind this rule is the concept of equality of representation which is the basic principle of Republicanism (Matias vs COMELEC, 3 SCRA 1, 7-8; 1961). One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the representatives represent as much as possible an equal number of constituents. This can be achieved either by making representatives represent districts of equal sizes in terms of inhabitants or by requiring that larger representative districts should be entitled to more representatives.

Moreover, in the same Article, Sec 5(3) provides:

Section 5. (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

This section is a prohibition of gerrymandering, which means the creation of representative districts out of separate portions of territory in order to favor a candidate.


LACK OF LGU CONSULTATION
House Bill 4267 was approved by the lower house on August 5, 2008, transmitted to and received by the Senate on August 11, 2008.

The Provincial Board expressed dismay over the non-information and non-consultation done with local officials affected by the House Bill 4267. It was only when the bill already passed plenary debate in the House of Representatives and is now in the Senate for concurrence that the matter come to their knowledge.

On the contrary, Agbayani said that consultation was made about the matter on the barangay level deploying leaders to achieve feedbacks. He also added that the board members should not worry because there will be more consultations top be made. He acknowledged the Provincial Board’s side on the issue.

Notwithstanding this contention, it has been held in Bai Sandra Sema vs COMELEC and Didagen Dilangalen, GR No. 177597, July 16, 2008 that certainly, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts is vested exclusively in Congress.

Section 5(1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5(4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress.

The exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body.

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of Representatives, is a national official. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office.

In a radio interview in Bombo Radyo Dagupan, Representative Agbayani said that reapportionment would mean more development for the province in terms of additional countryside development fund and other benefits due to a legislative district. At present, each congressman is allotted P70 million countryside development fund annually to be used for development programs and projects in his/her district. A new district, he also added, would mean 70 million pesos development fund for the province.


POLITICAL INTEREST/

POLITICALLY MOTIVATED MOVE
The provincial board eyed the move as a tactical maneuver to suit political ends. Agbayani defended the move saying reapportionment of congressional districts is mandated by the Constitution. The first three districts are now qualified to be reapportioned to four districts as each district would have the minimum required population of 250,000.00

Pangasinan, whose population stands at 2,645,395, may now qualify to have up to 10 districts. Agbayani said it was high time to reapportion districts in the province. “I cannot recall how many Census had already been undertaken after 1987,” said Agbayani. He stressed that it is only now that an additional congressional district is being sought.

Agbayani and Arenas believed that Pangasinan would have a better representation in the House of Reps and that development would be a lot faster if an additional legislative district is created.

Sixth District Board Member Alfonso Bince believes that the division of Pangasinan is the best alternative to HB 4267. Dividing the province into 2 parts—Western and Eastern and not redistricting nor creating a new district is best for Pangasinan’s development. “If this HB is approved, it will dilute the configuration in the present SP, it will reduce financial assistance of the Provincial Government to the districts and worst about it is that redistricting is not subject to plebiscite unlike division of provinces or towns,” Bince further reiterated.

Pangasinan at present is only one of the three provinces that allow two district Board Members in every congressional district. Likewise, there is a law that mandates a maximum of 12 district BMs. Thus, the reapportionment of the existing districts into seven new one’s will only create political and legal problems because the consequence would, there will be 14 regular board members and that will be more than what is under the law.
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Bince further stated that redistricting should be province-wide and not for selected districts only.

REPRESENTATION AND DEVELOPMENT

Seeing the issue as it transpires, it is the incumbent officials sitting in their most glorified seats, are the most upset because they have been painstakingly built their bailiwicks in the present compositions of districts; sowed money, time and effort in their ward leaders and now only to be suddenly derailed and discomfited by Congressmen supporting House Bills as such.

Only a homegrown debate engaged in by proponents and the opposition will help explain the bill to the people, especially those who will be affected by the changes if it is eventually approved and passed into law. After all, any decision involving the districts should not be so much a political issue but a matter of what would be best for the development of the province and its people.

Nevertheless, HB 4267 has given the people of Pangasinan their legal right in Congressional representation. The people control the government and the latter must do everything it can to help the people advance their cause. Our district representatives should be held responsible for being aware of what the Philippine Constitution provides for their fellow constituents, and that knowing the importance of the Census Population and the legal right the Constitution gave to every municipality and cities of every district—adding another Congressional district and a respective Representative in the Philippine Congress is paramount. As a matter of fact, If Pangasinan is entitled to 10 legislative districts, how come our Congressmen did not make the legal change of adding districts within the limited time allowed by the Constitution? Was this a constitutional oversight or a political control issue?

The more Congressional seats Pangasinan gets, legally, the more political power it can muster against the established quo of neglect for its constituency. It will help shift the political hegemony in Manila-centric politics, and rightfully transform the voice of Pangasinenses into a very powerful tool its leaders can use to bring home deserved funds to improve the province’s infrastructure from the towns and cities to the neglected barrios. The shameful begging days will be over, and due respect and treatment will be earned for the political might of Pangasinenses. Let us not forget though that by current statistics, Pangasinan is placed as the third (3rd) largest province in The Philippines! It has earned the right to have a powerful voice and influence in the country's political arena.

Although the aforementioned powerful political scenario holds many possibilities for Pangasinenses, we must also reflect on the possibility that it can be used negatively in the historical corruption of national and local politics. We only hope the good spirit of humanity prevails.



REFERENCES:

• Bernas, Joaquin G., S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary. Philippines: Quezon City. 2003 ed.
• Creation of ARMM's Shariff Kabunsuan is Invalid. Published August 31st, 2008 .
• National Statistics Office Website. Pangasinan Population.

Standard Oil Co. of New York vs Jaramillo

44 Phil 630

FACTS:
Gervasia dela Rosa executed a document in the form of a Chattel Mortgage purporting to convey to Standard Oil Co. by way of mortgage both the leasehold interest of the land she leases in Manila and the building which stands thereon.

The clauses in said document describe the property as personal including the right, title and interest of the mortgagor in and to the contract of lease and also the building of the said premises therein.

After said document had been duly acknowledge and delivered, the petitioner presented it to Joaquin Jaramillo, as register of deeds of the City of Manila, for the purpose of having the same recorded. The respondent opined that it was not a chattel mortgage for the interests mortgaged did not appear to be personal property within the meaning of the Chattel Mortgage Law and registration was refused on this ground only.

ISSUE:
1. Whether or not said property could be a subject for mortgage.

2. Whether the respondent is clothe with authority to determine such.

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RULING:
The duties of a register of deeds in respect to the registration of chattel mortgages are of purely ministerial character and no provision of law can be cited which confers upon him any judicial or quasi-judicial power to determine the nature of any document of which registration is sought as a chattel mortgage. The efficacy of the act of recording a chattel mortgage consists in the fact that it operates as constructive notice of the existence of the contract, and the legal effects of the contract must be discovered in the instrument itself in relation with the fact of notice. Registration adds nothing to the instrument, considered as a source of title, and affects nobody’s rights except as a species of notice.

The parties to a contract may by agreement treat as personal property that which by nature would be real property and it is a familiar phenomenon to see things classed as real property for purposes of taxation which on general principle might be considered personal property.

It is unnecessary to determine whether or not the property described in the document is real or personal. The issue is to be determined by the Court and not by the register of deeds.

NOTES: This is my own digest. Reading the whole text of the case is recommended.

A CRIMINAL ACT TO END A LIFE BEFORE BIRTH

The Philippine Constitution promotes a hierarchy of rights -- life, liberty and property. The right to life is the most fundamental and essential right of all and without such right other human rights would be inexistent.

Under our present Constitution, the State equally protects the “life of the mother and the life of the unborn from conception.”1 This does not say that the unborn is a legal person; nor does it deny, however, that the state under certain conditions might regard the unborn as a person. It does not assert that the life the unborn is place on exactly the same level as the life of the mother. It recognizes that, when necessary to save the life of the mother, it may be necessary and legitimate to sacrifice the life of the unborn. It, however, denies that the life of the unborn may be sacrificed merely to save the mother from emotional suffering or to spare the child from a life of poverty. The emotional trauma of a mother as well as the welfare of the child after birth can be attended to through other means such as availing of the resources of welfare agencies.2

In the Roe vs. Wade3 decision, abortion law was liberalized by allowing such up to the sixth month of pregnancy at the discretion of the mother any time during the first six months when it can be done without danger to the mother. The Supreme Court decision in the said case overturned a Texas interpretation of abortion law. It held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without restriction, and with restrictions in later months, based on the right to privacy. It invalidated all state laws limiting women's access to abortions during the first trimester of pregnancy. State laws limiting such access during the second trimester were upheld only when the restrictions were for the purpose of protecting the health of the pregnant woman. Roe vs. Wade legalized abortion in the United States, which was not legal at all in many states and was limited by law in others. The decision was rendered in protection of a person’s right to privacy having it based primarily on the Ninth Amendment to the United States Constitution, a part of the Bill of Rights stating that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.4

The unborn’s entitlement to protection begin from the moment of conception. In biology, it means the fertilization of an egg cell by a sperm cell and thus marks the beginning of pregnancy. By its meaning as a noun in the Encarta dictionary, it means the beginning or origin of something. The moment of conception, however, is hard to pin-point hence abortion is made illegal in the Philippines by leaning to the safer side of the argument.

Pursuant to this policy and principle, the Revised Penal Code penalizes and makes it a crime to a willfully kill the “fetus in the uterus or the violent expulsion of the fetus from the maternal womb which results in the death of the fetus.”5 Articles 256 to 259 of the same code define the various ways and means by which abortion is committed and this ordinarily means as the “expulsion of the fetus before the sixth month or before the term of its viability, that is, capable of sustaining life.”6 Therefore, once a woman is known to be pregnant, a life of a new being, distinct and separate from her body is existent and that made her decision to herself becomes questionable.

In the Philippines, there being harmony between the State principle and the criminal law on abortion, the decision in Roe vs. Wade will never be realized.

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1 The 1987 Philippine Constitution, Article II, Section 12.
2 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), pp. 84-85.
3 410 U.S. 113 (1973).
4 Jone Johnson Lewis, Roe v. Wade Supreme Court Decision, Retrieved March 19, 2008 at http://womenshistory.about.com/od/abortionuslegal/p/roe_v_wade.htm.
5 Reyes, The Revised Penal Code: Criminal Law, Book II (2001), p. 488.
6 Ibid.

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Submitted to Atty. Farah Decano in my Legal Writing Subject. I do not know what grade I got on this one.

MARRIAGE AND DIVORCE

Divorce is recognized around the world but not in Malta and in the Philippines and it should always remain unrecognized in this country.

Is it not enough that the Family Code of the Philippines gives two alternatives to people who want to get out of failed marriages – annulment and legal separation? Why do we need to push a bill on divorce?

Annulment is the remedy to remarry which entails proving in court that a marriage is void from its beginning due to psychological incapacity.1 Legal separation on the other hand does not dissolve the marriage bond between legally separated spouses thus forestalling them from pursuing subsequent marriages.

Attempts to legalize divorce in the Philippines have always been the subject of moral and legal debates. Divorce is not only a legal issue but also a moral issue thus making it difficult to resolve. The Philippines is dominantly Catholic and the Catholic Church is not in favor of divorce.

Morally speaking, divorce is seen as a universal error and a serious violation of God’s law based on the Catholic teachings that marriage is a sacred contract to the dignity of a sacrament. Such violation produces serious problem leading to social problems like runaway teens, drug addictions, prostitution, low self-esteem, depression and even suicide. Archbishop Oscar Cruz, D.D. Canon lawyer and a president of the Catholic Bishops Conference of the Philippines said that for “those desirous only of doing away with an impossible relationship with no intention to remarry, the recourse is legal separation not divorce. Regarding anomalous relationships such as in the case of psychiatric persons or behavioral deviants, once proven by experts that any of these have been existent at the time of the wedding, then civil marriage annulment is the recourse, not divorce.”2

Legally speaking, to sanction the availability or validity of divorce in the Philippines is to violate constitutionally set principles on marriage and family.

Article XV of the 1987 Philippine Constitution discusses family as a basic social institution protected and strengthened by marriage, to wit:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

The Family Code consequently provides that marriage “is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation.”3

Therefore, whatever legal route the proponents of a divorce law in the Philippines may take, it will end up running against the fundamental laws of the land. Besides, if someone thinks of marriage and settling for a family, he would not think of divorce and if there is such thing as divorce, then there is no really such thing as marriage.

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1 The Family Code of the Philippines, Article 36: A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)2 PRO-Life Philippines, Divorce - reducing marriage to a temporary sexual contract, Retrieved: March 19, 2008 at http://www.prolife.org.ph/page/divorce.3 Supra, Article 1.

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Submitted to Atty. Farah Decano in my Legal Writing subject. I do not know what grade she gave me for this.

I’M SO STRESSED OUT!

I received a message from a special someone inviting me to become his resident article blogger writer (wachamacallit) in a blogsite he have just created and without a second thought, I accepted the invitation.

Writing my first article, however, gave me a hard time more than I expected. First, because, I am into a rush of things—completing lists at work, researching, reading, reviewing and writing case digests. Second, my hand is already black and blue due to the first cause. Lastly, my mind is polluted with stress brought by my busy life. Then from there, I created the title.

We all experience stress. Today’s rapidly paced society and complex environment creates stress for many of us. Air and noise pollution, traffic congestion, crime, excessive workload, name all those factors that constantly pressured you to accomplish more and more in less and less time. Then add foreseeable or unexpected events that comes into our attention—death, getting stuck in a traffic, disaster, calamity, losing your wallet, recitation, quiz and exams! All of these cause stress.

Stress is a feeling created in reaction to particular events. It is the body’s way of mounting to a challenge and preparing to meet a tough situation with focus, strength, stamina, and heightened alertness.

However, people’s reactions to stress differ widely: some develop serious psychological or physical problems and others may find themselves in a challenging and interesting situation or environment. Let me quote at this point a text message forwarded to me by a friend. It says, “When it rains, all the birds fly for shelter but the eagle alone avoids the rain by flying above the clouds. Problems are common to all but attitude makes the difference.” I really don’t know if the bird scenario is a factual statement but the essence of the quote matters to me.

The invitation I responded to made me realize that I am one of the others and not one of the some. Nonetheless, I am also like the birds that fly for shelter when it rains and not like the eagle that will fly above the clouds.

I, being the social stratification theory advocate, have always view every event and everyday happenings as part of my providence. No matter how stressful an event is, I always see it as a challenge to test my capabilities and limits. I believe that change might be a conflict yet it is normal and always should be an opportunity for growth rather than a threat to security. I have personally observed that stress is easier to tolerate when its cause is shared by others. In our Land, Title and Deeds class, we were given more than 50 cases to digest for four Thursdays. Individual anxiety (which is obvious with most of my classmates) tend to be forgotten when the cases are divided into working teams. Companionship (of friends), then, distract us (UPang 2nd year Law Students ’08-’09) from our worries. Other people like family and special someones bolster self-esteem by providing support financially, morally and spiritually.

Hence, like the birds that fly for shelter, I know that I am a being with limited capabilities; that rather than being alone flying above the white cottony mass of air and water, being with other creatures like me in a strong branch of tree is a time for me to enjoy being still; and that the rain is a signal for me to stop to rest, for me to be able to cope and fight stress again.

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The writer stopped after writing 12 case digests out of 56 cases in one of her law subjects to write this article. She still need to study and review in the evening for a recitation after working in a legislative district office the next day. Aside from the 56 cases she is digesting, she also needs to digest more than 50 cases more all in all in her other law subjects.

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NOTE: Originally published in Praetorian '03, August 20, 2008. Written on August 18, 2008 at 7:20 PM

A Working Law Student

I am a law student. Contrary to what other people thinks about law students—intelligent and rich, I am an average learner and belonged in a middle class family. My books except on Commercial Laws are borrowed from a close friend, photocopied and bounded. I am also at the same time, working. I work for a law maker and is in-charge of whatever may be delegated to me but my main job concerns youth affair programs consultation and implementation.

That is the consequence of being above the poverty line yet short of belonging to an elite society. I need to work to support my studies aside from the fact that I need to support, as well, my 2^nd year Civil Engineering student brother by sharing with him 25% of what I earn and give at least 10% also to my mother for household daily expenses.

Class usually starts at 5:30 in the afternoon. Before the clock ticks 4, an hour before that, I have to make sure that I have at least completed 75% of the task I should finish that day because I have to give myself time to review the lessons to be discussed later. But most of the time, when I am in the office, I dig myself to work and ends up finding myself reading inside the bus on my way to school.

Studying law is no joke. You have to read bundle of cases which also follows that you are required to digest. Sometimes, more than 10-20 cases are assigned by the judge or lawyer-instructors as reading materials which you are required to recite in class the following meeting and if you are “luckily called”, you will be standing citing the facts, the issues and the ruling of the cases for an hour or two.

To study law entails having sleepless nights, big eyebags, and noticeable pimples. To study law is to understand the provisions and not just to memorize them. It entails laborious study evidenced by practitioners themselves who still study their law even they already surpass the Four Sundays of September (I am referring to the Bar Examinations held annually in the Philippines). They say that it is really important to study and stay updated because every lawyer’s task is to master the law for them to be able to competently assist their clients in the hall of justice.

After sitting of standing in class for more than an hour, I go home and usually arrives 9:30 in the evening. I will eat, take a rest, watch my primetime favorites then study afterwards before going to bed.

That is the reason why I love to describe myself in a web profile in this sentence: Sometimes, I do what I want to do. The rest of the time, I do what I have to.

With those aforementioned facts, most people will think of me having a boring life. All is routineary. But I will contest! My life is in fact, exciting!

I have been working since I was 19. At such an early age, I have worked with officers in the highest rank. I got to shake hands with the President, the Vice-President, the former Speaker of the House and local officials in the Province of Pangasinan. I get to interact with those people from different walks of life almost everyday. After more than 2 years or after being an employee of the province, new work experience was offered. Almost the same nature yet I have in my shoulders responsibilities. Responsibilities are challenges. And it is what keeps me going.

To add to these, one may wonder if I’m still having fun. I mean, fun shared with friend and/or with a special someone. Of course I do! I have a boyfriend and I have lots and lots of friends. After all, love is what weaves these roles together and makes the real me--a plain and simple working law student.