LEGAL RESEARCH

I.

Plagiarism/ Other unethical conduct

IN THE MATTER OF THE CHARGES OF PLAGIARISM ETC AGAINST ASSOCIATE JUSTICE

MARIANO C. DEL CASTILLO (A.M. NO. 10U7U17USC)
DOCTRINE: Rule on plagiarism cannot be applied to judicial bodies.
Emergency Digest: (recitLready, condensed digest)

Supreme Court issued a decision, which dismissed a petition filed by the Malaya Lolas
Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel
for Vinuya et al, questioned the said decision. He raised, among others, that the
ponente in said case, Justice Mariano del Castillo, plagiarized three books when the
honorable Justice twisted the true intents of these books to support the assailed
decision.

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least

inexcusable negligence. Interestingly, even the three foreign authors mentioned
above, stated that their works were used inappropriately by Justice Del Castillo and
that the assailed decision is different from what their works advocated. No. There is no
plagiarism. Even if there is (as emphasized by the Supreme Court in its ruling on the
Motion for Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot
be applied to judicial bodies

ISSUE: WON Justice Del Castillo, in writing the opinion for the Court in the Vinuya
case, plagiarize the published works of authors Tams, Criddle N Descent, and Ellis

HELD:
NO, Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, did NOT
plagiarize the published works of authors Tams, CriddleNDescent, and Ellis. There is no
plagiarism. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for
Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial
bodies.

Their duty is to apply the law as it is written. This is the basic reason why judges
reinstate the laws involved in cases do not use original/unique language in reinstating
the law is because of stare decisis
Rule on plagiarism cannot be applied to judicial bodies

CARPIO - dissenting in every case there is a legal duty ot make the proper attributions when
copying passages from copywrited works because the law expressly requires such attribution
without exception
Violated CANON 10.02
A lawyer shall not knowingly misquote/misrepresent the contents of a paper, the
language or the argument of opposing counsel, or text of a decision or authority or
knowingly cite as law a provision already rendered inoperative by repeal or
amendment, or assert as fact that which has not been proved
JUDGES : allowed to plagiarize but cannot misquote or mislead (must have evil intent)

LAWYERS 2011 Resolution same rule applies to lawyers. They can invoke the rule as
long as they must not misquote based on their sources
STUDENTS - can impose a rule prohibiting plagiarism

Academic freedom (based on academic policies)

Even without intent

INTRO TO LEGAL RESEARCH

Searching for authority that can be applied to a given set of facts and issues

Gathering information to support legal theories

HOW? Primary source trumps up secondary cases

Dissent v main decisions
Obiter v main ration
HOW NOT TO CONDUCT RESEARCH
PLAGIARISM

Unauthorized use

Without adequate attribution

Of the published ideas, expresions, works of another

With intent/through neglect

To pass the same as his/her own, in any written materials submitted, printed,
published in any law school publication in compliance with academic requirements
ALS CATALOGUE
Notwithstanding any jurisprudence to the contrary, and in accordance with the exercise of the
constitutionally recognized academic freedom, plagiarism is identified not through intent but
through the act itself, the objective act of falsely attributing to ones self what is not ones work
whether intentional or out of neglect is sufficient to conclude that plagiarism has occurred
One who pleads ignorance appeals to lack of malice/alleges poor instruction from
teacher/superiors are not valid excuses
Plagiarism is unauthorized use, without adequate attribution of the published ideas, expressions,
works of another, with the intent or through neglect to pass the same as his or her own in any
written materials, submitted printed or published in any law school publication in compliance with
academic requirements
FUNDAMENTAL RULES ON CITATION
- compile citation details while writing body
Primary authorities
- actual rules of law created by government bodies
-laws and codes
- case decisions
Secondary authorities
- books
-journal articles
- theses
-news clips
-reliable websites

HIPOS v BAY
Petition for Mandamus against the court seeking a reversal of the Order of judge Bay of RTC

which denied the Motion to Withdraw information of the Office of the City Prosecutor

refuses/neglect to evaluate such recommendation and insists on proceeding with the trial on the
mere pretext of having already aquired jurisdiction over the cirminal action

FACTS

Two Informations for the crime of rape and crime of acts of lasciviousness were filed
against petitioners Darryl Hipos, et al
Private complainants filed a Motion for Reinvestifation asking Judge Bay to order City
prosecutor of QC to study if the proper Informations had been filed against petitioners
and their accused. Judge Bay granted motion and ordered reinvestigation of cases
Petitioners then filed a Joint Memorandum to Dismiss the Case before the City
Prosecutor due to no probable cause of holding them liable for the crimes charged
Office of the Prosecutor issuesd a resolution on reinvestigation affirming the
Informations filed against petitioners
Asst Ciry Prosecutor Lamberto, treating the Joint Memorandum to Dismiss the case
as an appeal of the Resolution, reversed the Resolution holding that there was lack of
probable case. On the same day, City prosecutor filed a Motion to Withdraw
Informations before Judge Bay
Judge Bay denied the Motion to Withdraw Informations in an Order

ISSUE: can the Supreme Court compel respondent Judge Bay to dismiss the case through writ
of Mandamus. By virtue of the resolution from the Office of the City Prosecutor of QC finding no
probable cause against the accused
Mandamus extraordinary writ commanding a tribunal, corporation, board, officer./person
immediately or at some specified time, to do the act required to be done, when the respondent
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust/station/when respondent excludes another from the use and
enjoyment of a right/office to which the latter is entitled, and there is no other plain, speedy, and
adequate remedy in the ordinary course of law
compels an officer to perform ministerial duty, not a discretionary one
will not issue to control the exercise of discretion by a public officer where the law
imposes upon him the duty to exercise his judgment in reference to any manner in
which he is required to act, because it is his judgment that is to be exercised and not
that of the court

It appears that that the counsel of petitioners is purposely misleading the Court in
violation of Rule 10.02 of the Code of Professional Responsibility, because in the
case of People v Montesa, the counsel tried to convince the court that a judge is
allowed to deny a Motion to Withdraw informations from the prosecution only when
there is GAOD on the part of persecutors moving for such withdrawal and that where
there is no GAD on part of prosecutors, the denial of the Motion to Withdraw
Informations is void

The trial judge committed grave abuse of discretion when it denied the motion to withdraw the
information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order
is inconsistent with our repetitive calls for an INDEPENDENT and COMPETENT assessment of
the issue presented in the motion to dismiss
The bounden duty of the trial court is to make an independent assemssment of the merits of
such motion
A trial court however commits reversible error or even grave abuse of discretion if it

ALLIED BANKING v COURT OF APPEALS

HELD:

Preliminary matter: misquoting decisions of the Supreme Court by Atty. Durano

The phrase, refusal to obey a transfer order cannot be considered insubordination
where employee cited reason for said refusal, such as that of being away from the
family does not appear anywhere in the Dosch v NLRC found in the Supreme Court
Reports Annotated (SCRA)
o
Syllabus is not part of the courts decision; a counsel should not cite a
syllabus in place of the carefully considered text in the decision of the court
Rule 10.02 Canon 10 of the Code of Professional Responsibility mandates that a
lawyer shall not knowingly quote or misrepresnt the text of a decision or authority. It is
the duty of all officers of the court to cite the rulings and decisions of the Supreme
Court accurately

Whether Galinda was transferred for just cause :

The employer exercises the prerogative to transfer an employee for valid reasons and
according to the requirement of its business, provided the transfer does not result in
demotion in rank or dimunition of the employees salary, benefits, and other privileges.

In illegal dismissal cases ---the employer has the burden of showing that the transfer
is not unnnecessary, inconvenient, and prejudicial to the displaced employee.

Allied bank did not single out Galanida. Galanida was well aware of the banks policty
of periodically transferring personnel to different branches.

Galanidas transfer in the nature of a demotion. Galanida did not present evidence
showing that the transfer would diminish his salary, benefits, or other privileges
-the bank assured Galanida that he wouls not suffer any reduction in rank/grade and
the transfer would involve the same rank, duties, and obligations.

Theres no basis that Allied Bank was guilty of unfair labor practice in dismissing
Galanida = the constitutional rights of workers and employee to self-organization
Dosch v NLRC
- not applicable to present case
-Dosch transfer consequential to promotion. Court upheld refusal because no law compels an
employee to accept promotion
COMELEC v NOYNAY
FACTS
COMELEC resolved to file a information for violation of Section 261 of the Omnibus Election
Code against private respondents for having engaged in partisan political activities. Informations
for violation of the Omnibus Election Code were filed with Branch 23 of the RTC. However the
presiding judge ordered the records of the case to be withdrawn and directed the COMELEC
Law Dept to file the cases to the appropriate Municipal Trial Court because RTC has no
jurisdiction over the cases since the maximum impossible penalty in each of the cases does not
exceed six-years of imprisonment. The petitioner however filed the special civil action that
contends that the public respondent has erroneously miscontrued the provisions of Rep Act in
arguing that the Municipal Trial Court has exclusive original jurisdiction to try and decide election
offenses. Under Section 268 of the Omnibus Election Code, RTC have exclusive original
jurisdiction to try and decide any criminal action/proceedings for violation of the Code.

The exclusive original jurisdiction of the Metropolitan Trial Courts, Municipal Trial courts, and
Municiap Circuit Trial Courts does not cover those criminal cases which by specific provisions of
law fall within the exclusive original jurisdicion of RTC and Sandiganbayan regardless of the
penalty prescribed, jurisdiction is retained by RTC. Sec 32 of BP Blg 129 as amended by Sec 2
RA No 7691

FACTS
Max Schoop seeks admittance to practice law in the Philippine islands under paragraph
4 of the Rules for the Examination of Candidates for Admission to the Practice of Law
RULE: Applicants who may be admitted to the practice of law in the Philippines are :

1. Those who have been admitted to practice in the Supreme Court of the United
States/any circuit court of appeal or district court therein, or highest court of any State or
territory of the US, which State or territory by comity confers the same privilege on
attorney admitted to practice in the Philippine Islands
2. who can show by satisfactory affidavits that they have practiced at least 5 years in
any of said courts, may, in the discretion of the court be admitted without
examination

it is obvious that the respondent judge did not read at all the opening sentence of Secton 32 of
BP Blg 129 as amended. To remind him as well as other judges, to administer his office with due
regard to the integrity of the system of the law itself. To be faithful to the law, and to maintain
professional competence.
Counsel for Atty Balbuena must also be admonished for carelessness in his reference to the
case against Judge uan Levilles in the Motion for Reconsideration. He would have known to
correct name of the complainant in the case, Alberto Naldeza ALBERTO NALDOZA. The quoted
portions were not part of the findings / rulings

The rule of New York states:

1. Any person admitted to practice and who has practiced 5 years as member of the
bar in the highest law court in any other state or territory of the American Union or
in the District of Columbia
2. Any person admitted to practice and who has practiced 5 years in another
country whose jurisprudence is based on the principles of the English Common
Law

It seems proper to enter upon the consideration of whether or not under the New York
rule as it exists the principle of comity is established
Admission is in the discretion of the court

Every lawyer shall not knowlingly misquote/misrepresent the text of a decision or authority.
Rule 10.02

HISTORY
Common Law in the Philippine Islands

SC has not decided upon the extend of the English or Anglo-American Common law in
the Philippines

Common law jurisprudence however is used when they are founded on sound
principles applicable to local conditions and are not in conflict with existing laws

Philippine Reports of cases cites Common Law jurisprudence (its rules, principles, and
doctrines) in ascertaining the true intent and meaning of the legislation enacted for
Philippine Islands under American Sovereignty

WEEK 4 and 5
I. The Constitution and Statutory Law
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 declared 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. (5a)
Overview of the Philippine Legal system ; MALCOLM, J
IN RE SHOOP (1920)

Review of legislative history

Court said that provisions of legislative enactments which have been borrowed
form or modelled upon Anglo-American precedents needs to be reviewed on the
basis of its legislative history

For authoritative guide for the interpretation and application of decisions

Philippine Statute Law

Philippine reports show an increasing reliance upon English and American authorities
in the formation of what may be termed as Philippine Common Law , Shows a great
preponderance of jurisprudence of precedents

Expands the remnants of Spanish Codes and written laws

History
Spanish law highly codified during 19th century; all laws however not applicable to Philippine
Islands, only those were effective here which were extended by royal decree
Spanish chief codes
Penal Code
Code of Commerce

Special laws
Mining Law
Notarial Law

Code of Criminal Procedure, Code of Civil

Procedure
Civil Code
Marriage Law
Mortgage Law
Railway Law
Law of the Waters

Spanish Military Code

Copyright Law

No common law or case law to accompany statutes

Customs however constituted, in a sense, unwritten law
Spanish jurisprudence does not consider stare decisis ; a lower court of Spain is at
liberty to disregard the decisions of a higher court
Partidas code law, cases which cannot be decided either by local fueros must be
decided by provisions of Partidas (codified law)

Manresa, RULES BY WHICH COURTS ARE GOVERNED:

1) Written law
2) Customs of place
3) Judicial decision
4) General principles of law
In the Philippines,

Common law is expanded slowly and carefully by judicial decisions based on standard
of justice derived from the habits, customs, thoughts of the people

Duty of judges to not make common law but to find it and when found, affix it with
official mark by which it becomes more certainly known and authenticated

Anglo-American case law has entered practically every one of the leading subjects in
the field of law and has formed sole basis for guidenance of this court in developing
local jurisprudence

The Philippine Common Law supplements and amplifies law

Conclusions
1) The Philippine Islands is an unorganized territory of the US, under a civil government
established by Congress
2) In interpreting and applying the bulk of written laws of this jurisdiction, and in rendering
its decision in cases not covered by the letter of the written law,

3)
4)

this court relies upon the theories and precedents of Anglo-American cases
subject to the limited exception of those instances where the remnants of
the Spanish written law present well-defined civil law theories and of the few
cases

where such precedents are inconsistent with local customs and institutions
Jurisprudence of this jurisdiction is based upon the English Common Law in its
present day form of Anglo-American Common Law to an almost exlusive extent
New York rule, given a reasonable interpretation, permits conferring privileges on
attorneys admitted to practice in the
ISSUE
Whether Max Shoop may practice law in the Philippines?
HELD
GRANTED

PRIMARY AUTHORITIES

SECONDARY AUTHORITIES

-not always mandatory

-Constitution
-Codes and Statutes
-Cases
Court opinions lower court opinions are not
binding ONLY SC
-Legislative Materials

- all are persuasive

-Executive and Administrative materials
-Rules of Procedures
-Ordinances

Sec 7, CIVIL CODE

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 declared 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. (5a)

ANGARA v ELECTORAL COMMISSIONS

LAUREL, J.:
I.

THE FACTS

Petitioner Jose Angara was proclaimed winner and took his oath of office as member
of the National Assembly of the Commonwealth Government. On December 3, 1935, the
National Assembly passed a resolution confirming the election of those who have not been
subject of an election protest prior to the adoption of the said resolution.
On December 8, 1935, however, private respondent Pedro Ynsua filed an election
protest against the petitioner before the Electoral Commission of the National Assembly. The
following day, December 9, 1935, the Electoral Commission adopted its own resolution providing
that it will not consider any election protest that was not submitted on or before December 9,
1935.
Citing among others the earlier resolution of the National Assembly, the petitioner
sought the dismissal of respondents protest. The Electoral Commission however denied his
motion.
II.

THE ISSUE

Did the Electoral Commission act without or in excess of its jurisdiction in taking
cognizance of the protest filed against the election of the petitioner notwithstanding the previous
confirmation of such election by resolution of the National Assembly?
III. THE RULING
[The Court DENIED the petition.]
NO, the Electoral Commission did not act without or in excess of its jurisdiction
in taking cognizance of the protest filed against the election of the petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly.

The Electoral Commission acted within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Ynsua against
the election of the petitioner Angara, and that the earlier resolution of the National Assembly
cannot in any manner toll the time for filing election protests against members of the National
Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral
Commission might prescribe.
The grant of power to the Electoral Commission to judge all contests relating to the
election, returns and qualifications of members of the National Assembly, is intended to be as
complete and unimpaired as if it had remained originally in the legislature. The express lodging
of that power in the Electoral Commission is an implied denial of the exercise of that power by
the National Assembly. xxx.
[T]he creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be
filed. [W]here a general power is conferred or duty enjoined, every particular power necessary
for the exercise of the one or the performance of the other is also conferred. In the absence of
any further constitutional provision relating to the procedure to be followed in filing protests
before the Electoral Commission, therefore, the incidental power to promulgate such rules
necessary for the proper exercise of its exclusive power to judge all contests relating to the
election, returns and qualifications of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral Commission.
IN THE MATTER PETITIONS IN THE BAR
FACTS
In the manner of the petitions for Admission to the Bar of unsuccessful candidates of 1946 to
1953; Albino Cunanan et. al petitioners.
In recent years few controversial issues have aroused so much public interest and concern as
R.A. 972 popularly known as the Bar Flunkers Act of 1953. Generally a candidate is deemed
passed if he obtains a general ave of 75% in all subjects w/o falling below 50% in any subject,
although for the past few exams the passing grades were changed depending on the strictness
of the correcting of the bar examinations (1946- 72%, 1947- 69%, 1948- 70% 1949-74%, 19501953 75%).
Believing themselves to be fully qualified to practice law as those reconsidered and passed by
the S.C., and feeling that they have been discriminated against, unsuccessful candidates who
obtained averages of a few percentages lower than those admitted to the bar went to congress
for, and secured in 1951 Senate Bill no. 12, but was vetoed by the president after he was given
advise adverse to it. Not overriding the veto, the senate then approved senate bill no. 372
embodying substantially the provisions of the vetoed bill. The bill then became law on June 21,
1953
Republic Act 972 has for its object, according to its author, to admit to the Bar those candidates
who suffered from insufficiency of reading materials and inadequate preparations. By and large,
the law is contrary to public interest since it qualifies 1,094 law graduates who had inadequate
preparation for the practice of law profession, as evidenced by their failure in the exams.
ISSUES OF THE CASE:
Due to the far reaching effects that this law would have on the legal profession and the
administration of justice, the S.C. would seek to know if it is CONSTITUTIONAL.
An adequate legal preparation is one of the vital requisites for the practice of the law that
should be developed constantly and maintained firmly.

The Judicial system from which ours has been derived, the act of admitting, suspending,
disbarring, and reinstating attorneys at law in the practice of the profession is concededly
judicial.
The Constitution, has not conferred on Congress and the S.C. equal responsibilities
concerning the admission to the practice of law. The primary power and responsibility which the
constitution recognizes continue to reside in this court.
Its retroactivity is invalid in such a way, that what the law seeks to cure are not the rules set in
place by the S.C. but the lack of will or the defect in judgment of the court, and this power is not
included in the power granted by the Const. to Congress, it lies exclusively w/in the judiciary.
Reasons for Unconstitutionality:
1. There was a manifest encroachment on the constitutional responsibility of the Supreme Court.
2. It is in effect a judgment revoking the resolution of the court, and only the S.C. may revise or
alter them, in attempting to do so R.A. 972 violated the Constitution.
3. That congress has exceeded its power to repeal, alter, and supplement the rules on
admission to the bar (since the rules made by congress must elevate the profession, and those
rules promulgated are considered the bare minimum.)
4. It is a class legislation
5. Art. 2 of R.A. 972 is not embraced in the title of the law, contrary to what the constitution
enjoins, and being inseparable from the provisions of art. 1, the entire law is void.
HELD:
Under the authority of the court:
1. That the portion of art. 1 of R.A. 972 referring to the examinations of 1946 to 1952 and all of
art. 2 of the said law are unconstitutional and therefore void and w/o force and effect.
2. The part of ART 1 that refers to the examinations subsequent to the approval of the law (19531955) is valid and shall continue in force. (those petitions by the candidates who failed the bar
from 1946 to 1952 are denied, and all the candidates who in the examination of 1953 obtained a
GEN Ave. of 71.5% w/o getting a grade of below 50% in any subject are considered as having
passed whether they have filed petitions for admissions or not.)
1935 The NA has power to repeal, alter in the admission of the practice of the law in the
Philippines
Always check statement of the court and laws cited
If congress passes a law, then you say unconstitutional, do you a say on its
unconstitutionality?
1.
2.
3.

LAWS ARE CONSITUTIONAL ON THE FF GROUND

Congress exceeded powers
Law establish arbitrary methods and forms
Purposes and effects of the law violates the constitution and basic principles

Constitutional Supremacy
when a statute /law is contrary to constitution, consti will prevail; unless it is declared
by supreme court as unconstitutional it is presumed valid
Supreme Court
Art 8 - Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines. (n)
If SC interprets constitution its above the statute
SERRANO v GALLANT MARITIME SERVICES INC
FACTS

Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow
Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief
Officer, with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days
paid vacation leave per month.
On March 19, 1998, the date of his departure, Serrano was constrained to accept a downgraded
employment contract for the position of Second Officer with a monthly salary of US$1,000 upon
the assurance and representation of respondents that he would be Chief Officer by the end of
April 1998.
Respondents did not deliver on their promise to make Serrano Chief Officer. Hence, Serrano
refused to stay on as second Officer and was repatriated to the Philippines on May 26, 1998,
serving only two (2) months and seven (7) days of his contract, leaving an unexpired portion of
nine (9) months and twenty-three (23) days.
Serrano filed with the Labor Arbiter (LA) a Complaint against respondents for constructive
dismissal and for payment of his money claims in the total amount of US$26,442.73 (based on
the computation of $2590/month from June 1998 to February 199, $413.90 for March 1998, and
$1640 for March 1999) as well as moral and exemplary damages.
The LA declared the petitioner's dismissal illegal and awarded him US$8,770, representing his
salary for three (3) months of the unexpired portion of the aforesaid contract of employment, plus
$45 for salary differential and for attorney's fees equivalent to 10% of the total amount; however,
no compensation for damages as prayed was awarded.
On appeal, the NLRC modified the LA decision and awarded Serrano $4669.50, representing
three (3) months salary at $1400/month, plus 445 salary differential and 10% for attorney's fees.
This decision was based on the provision of RA 8042, which was made into law on July 15,
1995.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042, which reads:
Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.
The NLRC denied the Motion; hence, Serrano filed a Petition for Certiorari with the Court of
Appeals (CA), reiterating the constitutional challenge against the subject clause. The CA
affirmed the NLRC ruling on the reduction of the applicable salary rate, but skirted the
constitutional issue raised by herein petitioner Serrano.
ISSUES

1. Whether or not the subject clause violates Section 10, Article III of the Constitution on nonimpairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and Section
18, Article II and Section 3, Article XIII on labor as a protected sector.
HELD:

On the first issue.

The answer is in the negative. Petitioner's claim that the subject clause unduly interferes with the
stipulations in his contract on the term of his employment and the fixed salary package he will
receive is not tenable.
Section 10, Article III of the Constitution provides: No law impairing the obligation of
contracts shall be passed.
The prohibition is aligned with the general principle that laws newly enacted have only a
prospective operation, and cannot affect acts or contracts already perfected; however, as to laws
already in existence, their provisions are read into contracts and deemed a part thereof. Thus,
the non-impairment clause under Section 10, Article II is limited in application to laws about to be
enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or
in any manner changing the intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution
of the employment contract between petitioner and respondents in 1998.Hence, it cannot be
argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of
the parties. Rather, when the parties executed their 1998 employment contract, they were
deemed to have incorporated into it all the provisions of R.A. No. 8042.
But even if the Court were to disregard the timeline, the subject clause may not be declared
unconstitutional on the ground that it impinges on the impairment clause, for the law was
enacted in the exercise of the police power of the State to regulate a business, profession or
calling, particularly the recruitment and deployment of OFWs, with the noble end in view of
ensuring respect for the dignity and well-being of OFWs wherever they may be employed. Police
power legislations adopted by the State to promote the health, morals, peace, education, good
order, safety, and general welfare of the people are generally applicable not only to future
contracts but even to those already in existence, for all private contracts must yield to the
superior and legitimate measures taken by the State to promote public welfare.
On the second issue.
The answer is in the affirmative.
Section 1, Article III of the Constitution guarantees: No person shall be deprived of life, liberty, or
property without due process of law nor shall any person be denied the equal protection of the
law.
Section 18, Article II and Section 3, Article XIII accord all members of the labor sector, without
distinction as to place of deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate
to economic security and parity: all monetary benefits should be equally enjoyed by workers of
similar category, while all monetary obligations should be borne by them in equal degree; none
should be denied the protection of the laws which is enjoyed by, or spared the burden imposed
on, others in like circumstances.
Such rights are not absolute but subject to the inherent power of Congress to incorporate, when
it sees fit, a system of classification into its legislation; however, to be valid, the classification
must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane
to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally
to all members of the class.
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be rationally related to serving a legitimate
state interest; b) the middle-tier or intermediate scrutiny in which the government must show that

the challenged classification serves an important state interest and that the classification is at
least substantially related to serving that interest; and c) strict judicial scrutiny in which a
legislative classification which impermissibly interferes with the exercise of a fundamental right
or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and
the burden is upon the government to prove that the classification is necessary to achieve
a compelling state interest and that it is the least restrictive means to protect such interest.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all
OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent
against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs with employment
contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis--vis local workers with fixed-period employment;

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement
agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be
employed to achieve that purpose without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based
Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on
erring foreign employers who default on their contractual obligations to migrant workers and/or
their Philippine agents. These disciplinary measures range from temporary disqualification to
preventive suspension. The POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary
measures against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive means of aiding local
placement agencies in enforcing the solidary liability of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the
right of petitioner and other OFWs to equal protection.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were
illegally discharged were treated alike in terms of the computation of their money claims: they
were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But
with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally
dismissed OFWs with an unexpired portion of one year or more in their employment contract
have since been differently treated in that their money claims are subject to a 3-month cap,
whereas no such limitation is imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a suspect classification in that, in the
computation of the monetary benefits of fixed-term employees who are illegally discharged, it
imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in
their contracts, but none on the claims of other OFWs or local workers with fixed-term
employment. The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.
There being a suspect classification involving a vulnerable sector protected by the Constitution,
the Court now subjects the classification to a strict judicial scrutiny, and determines whether it
serves a compelling state interest through the least restrictive means.
What constitutes compelling state interest is measured by the scale of rights and powers arrayed
in the Constitution and calibrated by history. It is akin to the paramount interest of the state for
which some individual liberties must give way, such as the public interest in safeguarding health
or maintaining medical standards, or in maintaining access to information on matters of public
concern.
In the present case, the Court dug deep into the records but found no compelling state interest
that the subject clause may possibly serve.
In fine, the Government has failed to discharge its burden of proving the existence of a
compelling state interest that would justify the perpetuation of the discrimination against OFWs
under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the
employment of OFWs by mitigating the solidary liability of placement agencies, such callous and
cavalier rationale will have to be rejected. There can never be a justification for any form of
government action that alleviates the burden of one sector, but imposes the same burden on
another sector, especially when the favored sector is composed of private businesses such as
placement agencies, while the disadvantaged sector is composed of OFWs whose protection no
less than the Constitution commands. The idea that private business interest can be elevated to
the level of a compelling state interest is odious.

The subject clause or for three months for every year of the unexpired term, whichever is less
in the 5th paragraph of Section 10 of Republic Act No. 8042
is DECLAREDUNCONSTITUTIONAL
Note:

When the Court is called upon to exercise its power of judicial review of theacts of its co-equals,
such as the Congress, it does so only when these conditions obtain:
(1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial
determination;
(2) that the constitutional question is raised by a proper party and at the earliest opportunity;
and
(3) that the constitutional question is the very lis mota of the case, otherwise the Court will
dismiss the case or decide the same on some other ground.
---As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary
awards of illegally dismissed OFWs was in place. This uniform system was applicable even to
local workers with fixed-term employment.
Article 605 of the Code of Commerce provides:
Article 605. If the contracts of the captain and members of the crew with the agent should be for
a definite period or voyage, they cannot be discharged until the fulfillment of their contracts,
except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness,
and damage caused to the vessel or to its cargo by malice or manifest or proven negligence.
Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie, in which the Court held
the shipping company liable for the salaries and subsistence allowance of its illegally dismissed
employees for the entire unexpired portion of their employment contracts.
While Article 605 has remained good law up to the present, Article 299 of the Code of
Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for
a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the
contract

SAMEER OVERSEAS PLACEMENT V CABILES

FACTS

Decide on a petition for review on certiorari assailing CAs decision. The decision
partially affirmed National Labor Relations Commission resolution declaring
respondents dismissal illegal, directing petitioner to pay respondent 3-month salary
equivalent to New Taiwan Dollar
Petioner, Sameer Overseas Placement Agency, is a recruitment and placement
agency where respondent Joy Cabiles submitted her application to work in Taiwan
MANILA PRINCE HOTEL V GSIS
FACTS

The Respondent Government Service Insurance System (GSIS) in pursuant to the

privatization program of the Philippine Government under Proclamation No. 50 dated
8 December 1986, decided to sell through public bidding 30% to 51% of the issued.

In a close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy
51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad,

Manila Prince Hotel, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution Filipino first policy and submits that the Manila Hotel has been identified
with the Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture.

Manila Prince also said that since Manila Hotel is part of the national patrimony and its
businesses also unquestionable part of the national economy petitioner should be
preferred after it has matched the bid offer of the Malaysian firm for the bidding rules
mandate that if for any reason, the Highest bidder cannot be awarded the block of
shares, GSIS may offer this to the other qualified bidders that have validly submitted
bids provided that these qualified bidders are willing to match the highest bid in terms
of price per share

ISSUE
Whether or not the provisions of Section 10, second paragraph, Article 11 of the 1987
Constitution is self executing or non self executing

Non-executory provisions

Some constitutions are merely declaratory that requires legislative enactment to be

carried out

Provision which lays down general principle such as those found in Art II of the 1987
Constitution are not self executing
Executory provisions

Provisions that are complete in itself and has operative without the aid of
supplementary or enabling legislation or that which supplied sufficient rule by means
of which the right it grants may be enjoyed or protected

Legislative may still enact legislation to facilitate the exercise of powers directly
granted by the constitution:
- further the operation of such provision
-prescribe a practice to be used for its enforcement
- provide a convenient remedy for the protection of the rights secured
-place reasonable safeguards to secure a right
Unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are
self-executing.
If the constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. This can be cataclysmic
GR: In case of doubt, the constitution should be considered self-executing, as a contrary rule
would give the legislature discretion to determine when / whether they shall be effective. These
provisions would be subordinate to the will of the law making bodies
In case at hand, Sec 10, Art XII is self-executing and judicially enforceable. There I

As the Filipino first policy was deemed self executing, the court ruled that the
qualified Filipino entity must be given preference by granting it the option to match
the winning bid because the provision. The Supreme Court, therefore, directed the
GSIS and other respondents to cease and desist from selling the 51% shares of
the MHC to the Malaysian firm Renong Berhad, and instead to accept the
matching bid of the petitioner Manila Prince Hotel.

The rule is that (from Agpalo) in the case of doubt, the constitution should be
considered self executing rather than non self executing. Such is the case with
Section 10, second paragraph, Article 11 of the 1987 Constitution which states that
in grant of rights and privileges and concessions covering the national economy
and patrimony, the state shall give preference to qualified Filipino. According to
Justice Bellosillo, ponente of the case at bar, Section 10, second paragraph, Article
11 of the 1987 Constitution is a mandatory provision, a positive command which is
complete in itself and needs no further guidelines or implementing laws to enforce
it. The Court En Banc emphasized that qualified Filipinos shall be preferred over
foreigners, as mandated by the provision in question.

Furthermore, (agpalo) in its plain ordinary meaning the term patrimony pertains to
heritage . the constitution speaks of national patrimony , it refers not only to the
natural resources of the Philippines, as the constitution could have very well used
the term natural resources but also to the cultural heritage of the Filipinos and

If self executing: the sale of Manila Hotel to Renong Berhad is violative of the Constitutional
provision of Filipino First policy (Section 10, second paragraph, Article 11 of the 1987
Constitution) and is therefore null and void.
HELD
The Constitution

System of fundamental laws for the governance and administration of a nation. It is

supreme, imperious, absolute, unalterable except by the authority from which it
emanates from the people.

The fundamental and paramount law of the nation

Prescribes a general framework of a system of government, assigns to the different

departments their respective powers and duties, and establishes certain fixed
principles on which government is founded

Supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority is administered
Doctrine of Constitutional supremacy

Since constitution is the fundamental paramount and supreme law of the nation, it is
deemed written in every statute and contract

If a law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by private
persons for private purposes is null and void

therefore an example the Manila hotel which has become a landmark a living
testimonial of Philippine heritage

The Court also reiterated how much of national pride will vanish if the nations
cultural heritage will fall on the hands of foreigners, and this is not to be taken
lightly as Nationalism is inherent in the concept of the Philippines being a
democratic and republican state. In his dissenting opinion, Justice Puno said that
the provision in question should be interpreted as pro-Filipino and, at the same
time, not anti-alien in itself because it does not prohibit the State from granting
rights, privileges and concessions to foreigners in the absence of qualified
Filipinos. He also argued that the petitioner is estopped from assailing the winning
bid of Renong Berhad because the former knew the rules of the bidding and that
the foreigners are qualified, too.

HOW A BILL BECOMES A LAW

PHIL CONSTI art. VI
Sec. 26
[PARA 2]
No bill passed by either House
Shall become a law unless :

it has passed 3 readings on separate days and

printed copies thereof in its final form have been distributed to its member 3 days
before its passage
except
When President certifies to the necessity of its immediate enactment to meet:
(ground for certification)
a) public calamity
b) emergency
Upon last reading of the bill ,
- No amendment thereto shall be allowed
- Vote thereon shall be taken immediately after
- Yeas and nays entered in the journal

It shall become a law

In all cases, the votes of each House shall be determined
By yeas or nays and
Names of Members voting for or against shall be entered in its journal
2)

The President
Shall have the power to veto any particular item/items in an :
appropriation,
revenue, or
tarrif bill,
BUT veto shall not affect the item or items to which he does not object

EFFECTIVITY
CIVIL CODE Art 2.
Laws shall take effect after 15 days following the completion of their publication either in
the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided. (As amended by EO 200)
TANADA v TUVERA (1986)
FACTS:
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of implementation and
administrative orders
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...

SEC 27 : VETO POWER OF PRESIDENT

1) Every bill passed by Congress
Shall, before it becomes a law, be presented to President
[AT OP]

If he approves the same: he shall sign it

Otherwise: he shall veto it and return the same with his objections to House
where it originated
[AT THE HOUSE]

Which shall enter the objections at large in its Journal and proceed to reconsider
it

If after such reconsideration, 2/3 of all the members of such House

Shall AGREE to pass the bill, it shall be sent, together with objections,

to the other House by which it shall like wise be considered, and

If APPROVED by 2/3 of the Members of that House

In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of effectivity, which is the fifteenth
day following its publication-but not when the law itself provides for the date when it goes into
effect.

ISSUE: Whether or not the mandatory publication of the law in the Official Gazette is
a requirement for its effectivity.
HELD: YES

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication.

Considered in the light of other statutes applicable to the issue at hand, the conclusion
is easily reached that said Article 2 does not preclude the requirement of publication in
the Official Gazette, even if the law itself provides for the date of its effectivity.

Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored
rules cannot be recognized as binding unless their existence and contents are
confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot faint, parry
or cut unless the naked blade is drawn.

While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansaand for the diligent ones, ready access to the legislative
recordsno such publicity accompanies the law-making process of the President.

without publication, the people have no means of knowing what presidential decrees
have actually been promulgated, much less a definite way of informing themselves of
the specific contents and texts of such decrees.

the publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise impose a burden or. the
people, such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned.
It is needless to add that the publication of presidential issuances "of a public nature" or
"of general applicability" is a requirement of due process.

It is a rule of law that before a person may be bound by law, he must first be officially
and specifically informed of its contents

The clause unless it is otherwise provided refers to the date of effectivity and not to
the requirement of publication itself, which cannot in any event be omitted. This
clause does not mean that the legislature may make the law effective immediately
upon approval, or in any other date, without its previous publication.
Laws should refer to all laws and not only to those of general application, for strictly
speaking, all laws relate to the people in general albeit there are some that do not
apply to them directly.

A law without any bearing on the public would be invalid as an intrusion of privacy or
as class legislation or as an ultra vires act of the legislature. To be valid, the law must
invariably affect the public interest eve if it might be directly applicable only to one
individual, or some of the people only, and not to the public as a whole.

All statutes, including those of local application and private laws, shall be published
as a condition for their effectivity, which shall begin 15 days after publication unless a
different effectivity date is fixed by the legislature.

Publication must be in full or it is no publication at all, since its purpose is to inform

the public of the content of the law.
Article 2 of the Civil Code provides that publication of laws must be made in the
Official Gazette, and not elsewhere, as a requirement for their effectivity. The
Supreme Court is not called upon to rule upon the wisdom of a law or to repeal or
modify it if it finds it impractical.
The publication must be made forthwith, or at least as soon as possible.
J. Cruz:

CIVIL CODE
Art 3:
Ignorance of the law excuses no one from compliance therewith
Art 4:
Laws shall have no retroactive effect, unless the contrary is provided
Art 5:
Acts executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity
ADMIN CODE
Chapter 5
OPERATION AND EFFECT OF LAWS
Sec. 18. When Laws Take Effect. - Laws shall take effect after fifteen (15) days following the
completion of their publication in the Official Gazette or in a newspaper of general circulation,
unless it is otherwise provided.
Sec. 19. Prospectivity. - Laws shall have prospective effect unless the contrary is expressly
provided.
Sec. 20. Interpretation of Laws and Administrative Issuances. - In the interpretation of a law or
administrative issuance promulgated in all the official languages, the English text shall control,
unless otherwise specifically provided. In case of ambiguity, omission or mistake, the other texts
may be consulted.
Sec. 21. No Implied Revival of Repealed Law.- When a law which expressly repeals a prior
law itself repealed, the law first repealed shall not be thereby revived unless expressly so
provided
Sec. 22. Revival of Law Impliedly Repealed. - When a law which impliedly repeals a prior law
is itself repealed, the prior law shall thereby be revived, unless the repealing law provides
otherwise
Sec. 23. Ignorance of the Law. - Ignorance of the law excuses no one from compliance
therewith
Chapter 6
OFFICIAL GAZETTE
Sec. 24. Contents. - There shall be published in the Official Gazette all legislative acts and
resolutions of a public nature; all executive and administrative issuances of general application;
decisions or abstracts of decisions of the Supreme Court and the Court of Appeals, or other
courts of similar rank, as may be deemed by said courts of sufficient importance to be so
published; such documents or classes of documents as may be required so to be published by

law; and such documents or classes of documents as the President shall determine from time to
time to have general application or which he may authorize so to be published

In case of conflict between the Constitution and a statute, the Constitution always prevails
because the Constitution is the basic law to which all other laws must conform to. The duty of
the Court is to uphold the Constitution and to declare void all laws that do not conform to it.

The publication of any law, resolution or other official documents in the Official Gazette shall
be prima facie evidence of its authority
Sec. 25. Editing and Publications. - The Official Gazette shall be edited in the Office of the
President and published weekly in Pilipino or in the English language. It shall be sold and
distributed by the National Printing Office which shall promptly mail copies thereof to subscribers
free of postage.chanrobles virtual law library

TAWANG MULTIPURPOSE COOPERATIVE v LA TRINIDAD WATER DISTRICT (2011)

ISSUE SPOTTING

FACTS:

IRAC FORMULA (divide matter into four variables)

- Issue
-Rule
-Analysis
-Conclusion

Tawang Multi-Purpose Cooperative (TMPC) is a cooperative, organized to provide domestic

water services in Barangay Tawang, La Trinidad, Benguet. La Trinidad Water District (LTWD) is a
local water utility created under Section 47 of Presidential Decree (PD) No. 198, as amended. It
is authorized to supply water for domestic, industrial and commercial purposes within the
municipality of La Trinidad, Benguet.
TMPC filed with the National Water Resources Board (NWRB) an application for a certificate of
public convenience (CPC) to operate and maintain a waterworks system in Barangay Tawang.
LTWD opposed TMPCs application, arguing that its franchise is exclusive as provided under PD
198. A CPC is however granted. LTWD filed a motion for reconsideration but the same was
denied by NWRB. LTWD then appealed to the RTC where it court set aside the NWRB decision.
Hence, this petition.
ISSUE: Whether or not the petition may be granted
HELD: Yes. RTC Decision Set Aside.
Political Law- No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines, at least sixty per centum of whose
capital is owned by such citizens,nor shall such franchise, certificate or authorizationbe exclusive
in characteror for a longer period than fifty years.
Plain words do not require explanation. The 1935, 1973 and 1987 Constitutions are clear
franchises for the operation of a public utility cannot be exclusive in character. The 1935, 1973
and 1987 Constitutions expressly and clearly state that,"nor shall such franchise x x x be
exclusive in character."There is no exception.
When the law is clear, there is nothing for the courts to do but to apply it. The duty of the Court is
to apply the law the way it is worded. What cannot be legally done directly cannot be done
indirectly. This rule is basic and, to a reasonable mind, does not need explanation. Indeed, if acts
that cannot be legally done directly can be done indirectly, then all laws would be illusory.
Indeed, the President, Congress and the Court cannot create directly franchises that are
exclusive in character. What the President, Congress and the Court cannot legally do directly
they cannot do indirectly. Thus, the President, Congress and the Court cannot create indirectly.
In PD No. 198, as amended, former President Ferdinand E. Marcos (President Marcos) created
indirectly franchises that are exclusive in character by allowing the BOD of LTWD and the LWUA
to create directly franchises that are exclusive in character.

ISSUE
1.
2.
3.
4.

Check fact first

Key to issue spotting is being able to identify facts raised
Disregard unnecessary facts
Focus on facts may the parties go to court; having issues with

Question of fact v Question of law

QOF: the parties are in dispute over what happened

Facts of the case

QOL: the court is unsure which rule to apply to these facts
RULE
What is the law
Is it applicable to the facts presented?
Guide questions:
Are there exceptions to the rule?
Scope
What are the elements
From what authority does the rule come?

Ordinance , Constitution, Law

ANALYSIS
Lawyering
- compare the facts to the rule to the form of Analysis
For every relevant fact, ask whether fact prove or disprove the rule
- check fact and law together
- you may NOT end with a recital of the rule. YOU SHOULD APPLY IT
CONCLUSION
Take a stand
Based on analysis, come to a conclusion as to whether rule applies
Make sure that whatever you conclude is supported by your analysis
Limit the scope

Only answer the question being asked

Recognize uncertainties
Conclusion should always be stated as a probable result

TITLE

For each conclusion, there are different analysis

ENACTING CLAUSE

Written immediately after title which state

Ex.
Force upon things
ISSUE
RULE

Elements of robbery (299)

Theft = reached out; not theft no entrance

ANALYSIS

Apply rule to facts

BODY
Declaration of policy purpose
Sanctions complex laws
Sanctions penal laws
Transitory provision interim measures, law requires enactment of IRR
SEPARABILITY CLAUSE

Provision that if any provision of act is declared uncocnsituttional, the remained shall
not be affected thereby; not remain valid

Court can otherwise declare whole law unconstitutional

REPEALING CLAUSE
Law repealing another law
Law of supreme court declaring a law unconstitutional prevail over the law

PARTS OF A STATUTE
1.
2.
3.
4.
5.
6.
7.

Preamble
Title
Enacting statute
Body
Separability clause
Repealing clause
Effectivity clause

PREAMBLE

Prefatory statement, explanation or finding of facts reciting

Basis why law was enacted

Express and implied repeal

Example:
SEC 8 Repealing clause all laws,executive orders, or administrative order, rules o
EFFECTIVITY CLAUSE

Provision when law takes effect

CC General rule : 15 days after publication in OG and newspaper of general circulation
* publication not dispensed with
*publication will not be sufficient if it were published in tabloids