ART. 5.

ACTS EXECUTED AGAINST THE PROVISIONS OF MANDATORY OR PROHIBITORY LAWS SHALL BE VOID, EXCEPT HEN THE LAW ITSELF AUTHORIZES THEIR VALIDITY. I. Mandatory or Prohibitory Laws Distinguished from permissive laws. Mandatory statues must be obeyed, otherwise his acts would generally by void Violation of directory laws does not result in invalid acts Directory Laws (Statutes) - is an enactment of a legislative body that indicates only what should be done, with no provision for enforcement. The provisions of a directory statute are a matter of form only and do not affect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance. The strict fulfillment of a directory statute is not necessary to the validity of a proceeding, but with which there is a duty to comply as nearly as practicable.

Kinds of Mandatory Legislation: 1. 2. Positive when something must be done Negative or prohibitory when something should not be done

Example: In order to be valid, a simple donation inter vivos (a transfer or gift made during one's lifetime, as opposed to a testamentary transfer - a gift that takes effect on death) of a parcel of land must be in a public instrument. If orally made, or if effectuated in a private instrument, the donation is null and void. Legal provisions prescribing the period within which a decision should be rendered is both mandatory and directory: - Mandatory = if not complied with, other officers concerned may be dealt with administratively - Directory = in the sense that the judgments rendered after said period would still be valid II. 1. 2. 3. 4. Exceptions In some instances, the law authorizes their validity When the law makes the act not void but merely voidable (valid, unless annulled) at the instance of the victim When the law makes the act valid, but subjects the wrong-doer to criminal responsibility. When the law makes the act itself void, but recognizes some legal effects flowing therefrom. When the law itself makes certain acts valid although generally they would have been void.

ART. 6. RIGHTS MAY BE WAIVED, UNLESS THE WAIVES IS CONTRARY TO LAW, PUBLIC ORDER, PUBLIC POLICY, MORALS OR GOOD CUSTOMS, OR PREJUDICIAL TO A THIRD PERSON WITH A RIGHT RECOGNIZED BY LAW

I. Exceptions: 1. 2.

Rules for the Waiver of Rights General rule rights may be waived

When the waiver is contrary to law, public order, public policy, morals and good customs When the waiver is prejudicial to a third person with a right recognized by law (unless the third person consented to the making of the waiver or consent was present from the third person)

NOTE: The provision deals with waiver of rights NOT waiver of obligations or duties. Waiver of Obligations or Duties would be possible only if the person being possessed of certain rights, and resultant obligations or duties waives the said rights or if the law authorizes such waiver (eg. If a person who has a right renounces the same, in a sense, he is exempting himself from the obligations that may have ensued from the exercise of the right) II. 1. Definitions Right power or privilege given to one person and as a rule demandable of another - denotes an interest or title in an object or property 2 Subjects: a. Active subject the person entitled to the right b. Passive subject the person obliged to suffer the enforcement of the right Rights may be: a. Real rights (jus in re, jus in rem) enforceable against the whole world (absolute rights) - The right which a man has in a thing by which it belongs to him. It is a complete and full right. b. Personal rights (jus in personam, jus ad rem) enforceable against a particular individual (relative rights) - A right against a person; a right which gives its possessor a power to oblige another person to give or procure, to do or not to do, something. Waiver the intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. - a waiver may be express or implied Requisites for a Valid Waiver The person waiving must be capacitated to make the waiver - a waiver by a minor or by an insane person or non-compos mentis (referring to someone who is insane, or not mentally competent to conduct one's affairs) is voidable Waiver must be made clearly, but not necessarily express The person waiving must actually have the right which he is renouncing otherwise, he will not be renouncing anything. In certain instances the waiver, as in the express remission of a debt owed in favor of the waiver, must comply with the formalities of a donation The waiver must not be contrary to law, morals, public policy (the aim of the State in promoting the social welfare of the people), public order (or public safety) or good customs (those which exist in a particular place) The waiver must not prejudice others with a right recognized by law

2.

III. a.

b. c. d. e.

f.

Case: Jovencio Luansing v. People Imposition of Civil Liabilities was improper: (1) there was the reservation as to the civil aspect (2) the mere failure to file a motion for reconsideration does not necessarily result in waiver or abandonment - Abandonment required more convincing quantum evidence (amount of evidence needed; the quality of proof is how reliable such evidence should be considered) than mere forbearance to actually file the civil action (3) proof should be given with respect to the amount IV. Examples of Rights that Cannot be Renounced a. Natural rights: Right to Life - the right to be supported (present or future support) cannot be renounced, for support is vital to the life of the recipient b. Alleged rights which do not yet exist c. Those the renunciation of which would infringe upon public policy 1. The right to be heard in court cannot be renounced in advance this kind of confession of judgment cannot be allowed 2. A waiver of the legal right to repurchase a homestead that had been sold if the waiver is made in advance. 3. A waiver in advance of the one-month separation pay (the mesada) is contrary to public policy, but not a waiver after the right has accrued (accumulated, amassed, increased) 4. A tenant is not allowed to waive his right to the exemption provided by the Rice Tenancy Act from lien and attachment of 25% his share in the land products because such a waiver would be equivalent to a waiver of the tenants right to live. 5. A waiver of the 10-year period for suing on a written contract is contrary to public policy. 6. A stipulation requiring the recipient of a scholarship grant to waive (before receiving said award) his right to transfer to another school, unless he refunds the equivalent of his scholarship in cash, is null and void. - The school concerned obviously understands scholarship awards as a business scheme designed to increase the business potential of an educational institution. Thus, conceived, it is not only inconsistent with sound policy, but also with good morals. d. When the waiver is prejudicial to a third person with a right recognized by law Examples: 1. While an heir may renounce present inheritance (ie. Inheritance that has already accrued by virtue of the decedents death), still if the waiver will prejudice existing creditors, the latter can accept the inheritance in the name of the heir, but only to the extent sufficient to cover the amount of their credits. 2. T dies leaving J and H as heirs. H has his own children. If H repudiates the inheritance, his own children will clearly be prejudiced because H would have less property and the entire estate would be inherited by J. However, H is allowed to do this renouncing since after all, the children of H have no right recognized by the law (to their own legitime) till after Hs own death. The right to the legitime is indeed a mere expectancy. - a waiver cannot prejudice the right given to a person to make a choice a right recognized by law.

V.

Examples of Rights that may be Renounced A. Support in arrears (in debt) for evidently this is no longer needed for substinence B. The right granted to prepare at least two days before trial is waivable expressly or impliedly; it can be implied from the failure to ask for sufficient time to prepare for trial C. The right to object to testimony of a wife on information obtained because of her domestic relations with her husband it is waived when a husband accused of killing his son, does not only deny his guilt, but also points to the wife as the killer. In a prosecution for rape against his own child, a husband cannot object to the testimony given by his wife against him = may be considered an offense committed by a husband against his wife D. The right of the accused to be helped by counsel provided the judge informs said accused of his right. E. The right of the accused in a criminal case to have a preliminary investigation F. The venue of actions (the place where the action should be brought) may be waived, but not the courts jurisdiction. G. Although a tax obligation has already been extinguished by prescription, taxpayer may waive the benefit granted by law by reason of said prescription by the execution of a chattel mortgage to secure the payment of the same. H. An individual who accepts the office of an executor or administrator may waive compensation therefor I. The right to the back pay of an employee who has been dismissed without justifiable cause may be waived by him. - this is particularly so when he has been put back to work J. Failure to ask for vacation and sick leave privileges after a period of more than 5 years constitutes a valid waiver unless the intent of the law granting the same is clearly otherwise. The purpose of the privilege: - to give the employee a much needed rest, and not merely an additional salary. The privilege must be demanded in opportune time, and if he allows the years to go by in silence, he waives it. K. (Papa and Delgadoo v. Montenegro) The right for a husband to refuse his wife permission to alienate her paraphernal property - as long as there is nothing in the waiver that would be detrimental to anybody else NOTE: a wife of legal age (Art. 39. Civil Code: A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law) can alienate her paraphernal property without the consent or permission of the husband L. Prescription, if not pleaded as a defense before or during the trial, is deemed waived, and said defense cannot therefore be raised for the first time on appeal

ART. 7. LAWS ARE REPEALED ONLY BY SUBSEQUENT ONES, AND THEIR VIOLATION OR NON-OBSERVANCE SHALL NOT BE EXCUSED BY DISUSE OR CUSTOM OR PRACTICE TO THE CONTRARY.

WHEN THE COURTS DECLARE A LAW TO BE INCONSISTENT WITH THE CONSTITUTION, THE FORMER SHALL BE VOID AND THE LATTER SHALL GOVERN. ADMINISTRATIVE OR EXECUTIVE ACTS, ORDERS AND REGULATIONS SHALL BE VALID ONLY WHEN THEY ARE NOT CONTRARY TO THE LAWS OR THE CONSTITUTION. I. Sources of Law (in order of preference) a. Constitution b. Laws (or presidential decrees) c. Administrative or executive acts d. Orders and regulations How Laws are Repealed: a. Expressly b. Impliedly as there are inconsistencies between a prior and a subsequent law NOTE: Implied repeals are not looked up with favor. - If both statues can stand together, there is no repeal. NOTE: (Hidalgo v. Collector) Supreme Court held that Philippine laws (which are not of a political character) continued to be in force during the Japanese Occupation, it being a legal maxim that a law once established continues until changed by some competent legislative power. Our internal revenue laws among others continued to exist during the occupation. The Civil Code Repeals: 1. 2. 3. 4. The old Civil Code of 1889 The Code of Commerce provisions on sales, partnership, agency, loan, deposit and guaranty The provisions of the Code of Civil Procedure on prescription, as far as they are inconsistent with the new Civil Code. All laws, acts, parts of acts, Rules of Court, executive orders and administrative regulations, inconsistent with the new civil Code NOTE: In turn, we have the following repealing clause in the Family Code: Titles 3 to 9, 11 and 15 of Book 1 of RA No. 386, otherwise known as the Civil Code of the Philippines, and Provisions under the Child and Youth Welfare Code as amended, and all laws, decrees, executive orders, proclamations, rules and regulations or parts thereof, inconsistent herewith are hereby repealed. Rule for General and Special Laws

II.

III.

In case of conflict between a general and a special law, which should prevail? a. If a general law was enacted before the special law = the special law is the exeption to the general law THEREFORE: the general law remains good law = no repeal If the general law was enacted after the special law = the special law remains unless: 1. There is an express declaration to the contrary 2. There is a clear, necessary and unreconcilable conflict 3. Or unless the subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter.

b.

NOTE: An act passed later but going into effect earlier will prevail over a statute passed earlier and going into effect later. This is because the later enactment expressed the later intent IV. Lapse of Laws Laws may lapse (ie. End by itself in view of the expiration of the period during which it was supposed to be effective) without the necessity of any repeal as exemplified by the law granting the President, Emergency Powers or the annual appropriations law. Effect if the Repealing Law is Itself Repealed a. When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived, unless expressly so provided. Example: Law A is expressly repealed by Law B. If Law B is itself repealed by Law C, is Law A revived? No, unless Law C expressly so provides. b. When a law which repeals a prior by implication, is itself repealed, the repeal of the repealing law revives the prior law, unless the language of the repealing statute provides otherwise. Example: Law A is impliedly repealed by Law B. law B is later repealed by Law C. Is Law A revived? Yes, unless Law C provides otherwise. Non Observance of the Law Disuse, custom, or practice to the contrary does not repeal a law. Executive Fiat Cannot Correct a Mistake in the Law A mistake in the law or legislation cannot be corrected by executive fiat but by another legislation. Unconstitutional Laws, Treaties, Administrative or Executive Orders a. Rule under the 1935 Constitution TO declare a law or treaty unconstitutional, eight Justices of the Supreme Court out of eleven must so declare. To declare an executive or administrative order or even a municipal ordinance unconstitutional, a simple majority (6 Justices out eleven) would suffice. b. Rule under the 1973 Constitution The Supreme Court: - Chief Justice - 14 Associate Justice - may sit en banc or in two divisions - All cases involving the constitutionality of a statute (treaty, executive agreement or law) shall be heard and decided by the Supreme Court en banc - At least 10 Members must concur to declare if a treaty, executive agreement or law is unconstitutional - For all other cases, at least 8 members must concur to decide, but must be heard en banc - Cases heard by a division shall be decided with the concurrence of at least 5 members but if such a required number is not obtained, the

V.

VI.

VII.

VIII.

c.

case shall be decided en banc: Provided, That no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc Rule under the 1987 Constitution - SC is composed of a Chief Justice and 14 Associate Justices - may sit en banc or in its discretion, in divisions of 3, 5 or 7 members - any vacancy shall be filled within ninety (90) days from the occurrence thereof - ALL CASES involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc - ALL OTHER CASES which under the Rules of Court are required to be heard en banc (including those involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations) shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. - CASES HEARD BY A DIVISION shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least 3 such members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

The Powers of the Supreme Court: Review Revise Reverse Modify Affirm on appeal or certiorari as the law or the Rules of Court may provide Final Judgements or orders of lower courts in: all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question. Supremacy of the Constitution

IX.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the constitution - asserts the supremacy of law and the Constitution over administrative or executive acts. - the disregard of this principle is one of the main sources of abuse of power by administrative officials X. No collateral Attach - the constitutionality of a law or executive order may not be collaterally attacked - they shall be deemed valid unless declared null and void by a competent court

XI. Examples of Constitutional Laws Statute providing that a school teacher who is a member of an org which advocates the overthrow of the government by force is disqualified from continued employment in the public schools Law on the installation of road safety signs and devices under the 1968 Vienna Convention on road signs and signals Provision of the Share Tenancy Act authorizes the tenant to change the share tenancy to that of leasehold tenancy RA 809 regulates the relations among persons engaged in the sugar industry in the interest of police power and social justice Secs 4 and 34 of the Agricultural Land Reform Code a valid exercise of police power XII. Some Grounds for Declaring a Law Unconstitutional a. The enactment of the law may not be within the legislative powers of the lawmaking body b. Arbitrary methods may have been established c. The purpose or effect violates the constitution or its basic principles XIII. Example of an Unconstitutional Law - Bar Flunkers Act of 1953

XIV. Effect of a Law That Has Been Declared Unconstitutional An unconstitutional law confers: - no right - no office - affords no protection - justifies no acts performed under it XV. No Power of Executive Department to Promulgate Even By Means of a Treaty, Rules for Admission to the Practice of Law

XVI. Operative Fact Doctrine When a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. Any legislative or executive act contrary to its terms cannot survive ART. 8. JUDICIAL DECISIONS APPLYING OR INTERPRETING THE LAWS OR THE CONSTITUTION SHALL FORM A PART OF THE LEGAL SYSTEM OF THE PHILIPPINES I. II. Are Judicial Decisions Laws? Judicial decisions, though not laws, are evidence however of what the laws mean, and this is why they are part of the legal system of the Philippines It is clear that a judicial interpretation becomes a part of the law as of the date that law was originally passed Judicial decisions of the SC assume the same authority as the statute itself. Decisions Referred to in the Provision The decisions referred to are those enunciated by the SC, which is the court of last resort. only the decisions of this Honorable Court establish jurisprudence or doctrines in this jurisdiction Decisions of subordinate courts are only persuasive in nature, and can have no mandatory effect

A final judgement ratio decidendi should, however be distinguished from the opinion which states the reasons for such judgment. While an opinion is the informal expression of the views of the Court, it cannot certainly prevail against its final order or decision. No provision of the constitution is violated when the SC denies a petition for review by the issuance of a mere minute resolution. The resolutions are not decisions within the constitutional requirement. They merely hold that the petition for a review should not entertained in view of the provisions of the Rules of Court

III. Doctrine of Stare Decisis let it stand et non quieta movere For reasons of stability in the law adherence to precedents once a case has been decided one way, then another case, involving exactly the same point at issue should be decided in the same manner IV. Obiter Dicta Opinions not necessary to the determination of a case. They are not binding and cannot have the force of judicial precedents A dissenting opinion affirms or overrules no claim, right or obligation it merely expressed the view of the dissenter V. How Judicial Decisions May be Abrogated a. By a contrary ruling by the SC itself b. By corrective legislative acts of Congress NOTE: Congress cannot, however, alter a SC interpretation of a constitutional provision for this would be an unwarranted assumption of judicial power. The legislature is allowed to define the terms it uses in a statute, said definitions being considered as part of the law itself. VI. Is there a Philippine Common Law? In general, the Philippines is not a common law country. We have some sort of Philippine Common Law a common law that supplements and amplifies our statute law. VII. Opinions of the Secretary of Justice and Other Executive Officials His opinions although not law, should be given great weight but these opinions cannot correct mistakes in legislation nor should have a controlling effect on the courts VIII. Judicial Review of Administrative Decisions Judicial review of the decision of an administrative official is subject to certain guideposts IX. When Final Judgments May be Changed a. A judgment void for lack of jurisdiction over the subject matter can be assailed at any time either directly or collaterally b. It is now well-settled in this jurisdiction that when after judgment has been rendered and the latter has become final, facts and circumstances transpire

X. -

Barangay Courts No Complaint, petition, action, or proceeding involving matters, within the authority of the Lupon shall be filed or instituted in court unless there has been confrontation between the parties The Barangay court has no jurisdiction if the parties come from different municipalities and their barangays do not adjoin each other Extradition Law

XI.

ART. 9. NO JUDGE OR COURT SHALL DECLINE TO RENDER JUDGEMENT BY REASON OF THE SILENCE, OBSCURITY OR INSUFFICIENCY OF THE LAWS I. II. Duty of a Judge if the Law is Silent A judge must give a decision whether he knows what law to apply or not Even a judge does not know rules, he must still decide the case Old Codal Provision When there is no law exactly applicable to the point of controversy, the custom of the place shall be applied, and in default thereof, the general principles of law no longer found in the new civil code

III. Does Art. 9 apply to Criminal Cases? Yes, if somebody is accused of a non-existent crime, the judge must dismiss the case Judicial Acquittal IV. Supreme Court Basically a Review Court It passes upon errors of law (sometimes of fact, as in the case of mandatory appeals of capital offenses) of lower courts as well as determines whether there had been grave abuse of discretion ART 10. IN CASE OF DOUBT IN THE INTERPRETATION OR APPLICATION OF LAWS, IT IS PRESUMED THAT THE LAWMAKING BODY INTENDED RIGHT AND JUSTICE TO PREVAIL. I. Dura Lex Sed Lex The law may be harsh, but it is still the law It is the sworn duty of the judge to apply the law without fear or favor, to follow its mandate, not to temper with it. In Case of Doubt In case of doubt, the judge should presume that the lawmaking body intended for right and justice to prevail Congressional Debates Courts are not bound by a legislators opinion in congressional debates regarding the interpretation of a particular legislation. Comment on the Code of Commission Art. 10 is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law

II. -

III. -

IV. -

ART. 11. CUSTOMS WHICH ARE CONTRARY TO LAW, PUBLIC ORDER OR PUBLIC POLICY SHALL NOT BE COUNTENANCED I. Definition of Custom A custom is a rule of human action established by repeated acts, and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding Requisites before the Courts can Consider Customs Must be proved as a fact, accdg. to the rules of evidence Must not be contrary to law, public order or public policy There must be a number of repeated acts Repeated acts must have been uniformly performed There must be juridical intention to make a rule of social conduct Sufficient lapse of time gives evidence of the fact that indeed it exists and is being duly observed Laws Distinguished from Customs

II. a. b. c. d. e. f.

III.

Laws written, consciously made, enacted by Congress Custom unwritten, spontaneous and comes from society ART. 12. A CUSTOM MUST BE PROVED AS A FACT ACCORDING TO THE RULES OF EVIDENCE I. Presumption of Acting in Accordance with Custom - a person acts according to the custom of the place When a Custom is Presumed Non Existent When those who should know, do not know of its existence

II. -

III. Kinds of Customs a. General Custom that of a country Custom of a place one where an act transpires NOTE: a general custom if in conflict with the local custom yields to the latter b. A custom may be: 1. Propter Legem in accordance with law; unnecessary to apply because it merely repeats the law 2. Contra Legem against the law; wrong to apply 3. Extra Legem may constitute sources of supplementary law

ART. 13. WHEN THE LAW SPEAK OF YEARS, MONTHS, DAYS OR NIGHTS, IT SHALL BE UNDERSTOOD THAT YEARS ARE OF 365 DAYS EACH; MONTHS OF 30 DAYS; DAYS OF 24 HOURS; AND NIGHTS FROM SUNSET TO SUNRISE IF MONTHS ARE DESIGNATED BY THEIR NAME, THEY SHALL BE COMPUTED BY THE NUMBER OF DAYS WHICH THEY RESPECTIVELY HAVE IN COMPUTING A PERIOD, THE FIRST DAY SHALL BE EXCLUDED, AND THE LAST DAY INCLUDED. A week of labor only 6 labor days

ART. 14. PENAL LAWS AND THOSE OF PUBLIC SECURITY AND SAFETY SHALL BE OBLIGATORY UPON ALL WHO LIVE OR SOJOURN IN PHILIPPINE TERRITORY, SUBJECT TO THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW AND TO TREATY STIPULATIONS I. Theories of Territoriality and Generality

Theory of Territoriality any offense committed within our territory offends the state. Any person, whether citizen or alien, can be punished for committing a crime here. Generality even aliens, male or female come under our territorial jurisdiction II. a. b. III. Exceptions The principles of Public International Law Immunities granted to diplomatic officials and visiting heads of states, provided the latter do not travel incognito The presence of treaty stipulations. Constitutionality of the Military Bases Agreement

ART. 15. LAWS RELATING TO FAMILY RIGHTS AND DUTIES OR TO THE STATUS, CONDITION AND LEGAL CAPACITY OF PERSONS ARE BINDING UPON CITIZENS OF THE PHILIPPINES, EVEN THOUGH LIVING ABROAD. I. Status Defined - includes person qualities and relations, more or less permanent in nature, and not ordinarily terminable at his own will, such as his being married or not, or his being legitimate or illegitimate. - the sum total of a persons rights, duties and capacities Scope of Art. 15 (Nationality Principle) a. Family rights and duties b. Status c. Condition d. Legal capacity

II.

III. Applicability of Art. 15 It is a rule of private international law which stresses the principle of nationality