INTRODUCTION

Philosophy is written in this grand book - I mean the

universe - which stands continually open to our gaze, but it
cannot be understood unless one first learns to comprehend the
language and interpret the characters in which it is written.
It is written in the language of mathematics, and its
characters are triangles, circles, and other geometric figures,
without which it is humanly impossible to understand a single
word of it; without these, one is wandering about in a dark
labyrinth.

- Galileo
Galilei
II Saggiatore [1623]1

Admittedly, legal philosophy is not that popular a

subject in law schools.

Perhaps this perception towards the subject is borne in

part to the fact that bar examination subjects rarely, if not at all,
include questions from this field or discipline.

This is aggravated by the fact that the student of law •

eager on his first year of studies - will be introduced to
foreign and often confusing philosophical concepts that to
his mind would hardly make an impact on future studies on
mainstream law subjects.

1The Assayer in The Controversy on the Comets 0f 1618 [1960], translated by

Stillman Drake and C. D. O'Malley.
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 Yet, be that as it may legal philosophy -in truth
and in fact -pervades the cornucopia of our legal knowledge
and is partly responsible for its development through the years.

Though rarely credited for its influence in the crafting of

statutes and the adoption of legal systems -concepts and
principles that gestated within philosophical though and
debate has produced landmark inroads in civil law,
labor law, commercial law not to mention our ever
evolving penal system and the procedures that we employ
within the halls of the justice system.

The solution perhaps lies in the manner and

approach in teaching the subject to freshmen law students as
well as to seasoned litigators and members of the Bench.

The jurisprudential approach.

This humble work, therefore -makes a very conscious

effort in presenting and discussing philosophical concepts
through their manifestation in the more tangible legal and
political systems that we are more familiar with.

Thus, instead of the usual exposition of heretofore

nebulous philosophical concepts which was the usual fare in
philosophical discussions, the adopted approach in this humble
endeavor is to reduce said discussion as to how they
influence our legal paradigm as we know them today
through the use of established jurisprudence rich in
philosophical discussion shared by our esteemed jurists.

In short, this work approaches the unknown --through

ideas, systems and perceptions that are familiar to us with the
end in view of grasping and appreciating the dynamism
between legal philosophy its concepts, principles and
schools of thought, with the development of our system of laws.

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 As this will continuously be a work in progress, this work
does not purport to be an exhaustive exposition on the subject
but rather an attempt to help the student familiarize himself
with the concepts and principles of legal logic.

I hope that this humble work serves as a catalyst for a

revival in the appreciation of legal philosophy and encourage
everyone - the student of law, members of the Bench and
the Bar, and the ordinary man on the street - to engage once
again in the lively, spirited and intellectual deliberation of its
concepts, principle and more importantly, its application in
today's modem problems.

Let the debates begin.

May the darkness of sin and the night of unbelief, vanish

before the light of the Word and the Spirit of Grace.

- The Author
Bonifacio Global City. 2020

Second star to the right,

Straight on till morning

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DEDICATION

Porque de tal manera amo Dios al mundo, que ha

dado a su Hijo unigenito, para que todo aquel que en el crce,
no se piedra, mas tenga vida eterna."

- John 3:16

Este obra modesta es dedicada a una persona

quien me ha ensenado gentileza entre exito,
magnanimidad y humilidad en triunfo, cortesia en
derrota, fuerte en adversidad, esperanza en medio de la
desperacion, y lo que es mas importante, abro, mis ojos al
mundo maravilloso aun intrincado de ley.

Para mi padre y madre

Hon. Gregorio Duque-Aquino, Jr.'

Pangasinan y Ciudad de Quezon

Lida Viloria Cacanando-Aquino'

La Union y Ciudad de Quezon

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CHAPTER 1
Preliminary Considerations

"Nature - that is, biological evolution - has not fitted

man to any specific environment... Among the multitude
of
animals which scamper, fly, burrow, and swim around us,
ma
is the only one who is not locked into his environment.
His
imagination, his reason, his emotional subtlety and toughness,
make it possible for him not to accept the environment but
to change it. And that series of inventions is a different
kind of evolution - not biological, but cultural evolution. I
call that brilliant sequence of cultural peaks."

- Jacob Bronowski
The Ascent of Man

Philosophy and The Law

There is a natural partnership between philosophy

and the law. Philosophy's inquisitive nature intertwined with
the law's penchant
combination.
for order, makes for a veritable •
rigidity tempered by dynamism.

Throughout the years, there has been an insatiable

attempt to discover the true nature of law using tools
borrowed from a very inquisitive discipline, known to most as
philosophy. Though at first glance, philosophy may more
often than not delve into the mysteries of knowledge and its
acquisition and application. It has, at so many point of our
history, taken a gander at the nature of law, its concept, its
application and more importantly - its compulsory power to
make people obey.

1
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 The developing relationship between law and philosophy
is a conundrum at best. Philosophy with its free range of
thought and law -with its rigid processes and systems. Yet the
relationship has bore fruit in more ways than we can imagine.
Philosophy allows us to expand our concept of law beyond its
rigidity and established system. Philosophical inquiry has
elevated law from a mere regulatory regime to a vehicle to
further the ends of justice and equity, beyond the usual
borders of statutes and regulations. Through law, philosophy
has found an anchor within which to establish various premises
towards a further understanding of human interaction which
we call justice. Beyond the conceptions of right and
wrong, the inquisitive force that is philosophy has prodded law
to question existing norms and accepted rules. Thus, allowing us
to develop further and better concepts that regulate, observe,
judge the human condition.

Nature of Philosophy

Philosophy by its very nature is inquisitive. It constantly

seeks answers to questions yet, more often than not, the question
is more important than the answer. Inquiry is the fuel that
powers philosophy.

It is the currency in which we prod our humanity to

question, to challenge the norm, to be more than ourselves. We
need philosophy in order for us to look further than what we
have been taught and made to believe.

Reason and Spirit of the Law

However, it should be borne in mind that the zeal and

diligence of the courts in this respect should be exercised and
displayed in accordance with the legal standards, recognizing
everybody's right to make use of all means afforded him by the
laws, because it is secured by the constitutional guarantee of
"due process" and because the end does not justify the means and

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~t by the_; ways and
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, means which must first have the sanction of the
legislative
'_branch of the government. To leave the determination of
'j, controversies entirely to the presumed uprightness and
wisdom
£ ~} of a court or judge, ignoring the legal provisions, is equivalent to
.- allowing the stability of governments and their institutions to
_ depend upon aleatory events. Let it not be said that in this
3 case the letter of the law is one thing and the spirit another
thing.
j When, as in this case, the letter of the law is clear, to seek its
, spirit elsewhere is simply to venture vainly, to no
practical purpose, upon the boundless domains of speculations.I

Statutes; We test a law by its results. A law should not be

interpreted so as to cause an injustice. -But as has also been aptly observed,
we test a law by its results; and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the first concern of the
judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to
cause injustice as this is never within the legislative intent. An indispensable
part of that intent, in fact, for we presume the good motives of the legislature,
is to render justice.

Tl Alonzo vs. Intermediate Appellate Court

Five brothers and sisters inherited in equal pro
indiviso shares a parcel of land registered in 'the name of
their deceased parents. One of them transferred his
undivided share by way of absolute sale. A year later, his
sister sold her share in a "Con Pacto de Retro Sale". By
virtue of such agreements, the petitioners occupied, after
the said sales, an area corresponding to two-fifths of the
said lot, representing the portions sold to them. The
vendees subsequently enclosed the same with a
fence. with their consent, their son Eduardo Alonzo and
his wife built a semi-concrete house on a part of the
enclosed area.
 One of the five coheirs sought to redeem the area
sold to petitioners but was dismissed when it appeared

e, 1 Pascual vs. Santos, 62 Phil., 148 [1935]

? 150 SCRA 259, May 28, 1987

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 that he was an American citizen. Another coheir filed her
own complaint invoking the same right of redemption of
her brother. Trial court dismissed the complaint, on the
ground that the right had lapsed, not having been
exercised within thirty days from notice of the
sales. Although there was no written notice, it was held
that actual knowledge of the sales by the co-heirs satisfied
the requirement of the law. Respondent court reversed
the decision of the Trial Court.

Did actual knowledge satisfy the requirement of Art.

1088 of the New Civil
Code?

The High Court ruled in the affirmative

decision of respondent court was reversed and that of
trial court reinstated. The co-heirs in this case were
undeniably informed of the sales although no notice in
writing was given them. And there is no doubt either that
the 30-day period began and ended during the 14 years
between the sales in question and the filing of the
complaint for redemption in 1977, without the co-heirs
exercising their right of redemption. These are the
justifications for this exception.

While courts may not read into the law a purpose

that is not there, courts nevertheless have the right to
read out of it the reason for its enactment. In doing so,
courts defer not to "the letter that killeth" but to "the
spirit that vivifieth," to give effect to the law maker's will.

As judges, we are not automatons. We do not and must

not unfeelingly apply the law as it is worded, yielding like
robots to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to the
words of a law," so we are warned, by Justice Holmes again,
"where these words import a policy that goes beyond them."3 While
we admittedly maynot legislate, we nevertheless have the
power to interpret the law in such a way as to reflect the will
of the legislature. While we may not read into the law a
purpose
that is not there, we nevertheless have the right to read out of it

3 Alonzo vs. Intermediate Appellate Court, 150 SCA 259, May 28, 1987; citing
Dissenting in Olmstead v. U.$, 277 U.S. 438.

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 the reason for its enactment. In doing so, we defer not to "the
letter that killeth" but to "the spirit that vivifieth," to give effect to
the lawmaker's will.

"The spirit, rather than the letter of a statute determines its

construction, hence, a statute must be read according to its spiritor intent.
For what is within the spirit is within the statute although it is not within
the letter thereof, and that which is within the letter but not within the spirit
is not within the statute. Stated differently, a thing which is within the
intent of the lawmaker is as much within the statute as if within the
letter; and a thing
which is within the letter of the statute is not within the statute unless
within
the intent of the law
makers."5

.» League of Cities of the

Philippines vs. Commission on
Elections°

During the 11th Congress,7 fifty-seven (57)

cityhood bills were filed before the House of
Representatives.8 Of the fifty-seven (57), thirty-three (33)
eventually became laws. The twenty-four (24) other bills
were not acted upon.Later developments saw the
introduction in the Senate of Senate Bill No. 21579 to
amend Sec. 450 of Republic Act No. 7160, otherwise
known as the Local Government Code (LGC) of 1991. The
proposed amendment sought to increase the income
requirement to qualify for conversion into a city from

4 Alonzo vs. Intermediate Appellate Court, 150 SCRA 259, May 28, 1987;
citing

QAlonzo vs. Intermediate Appellate Court, 150 SCRA 259, May 28, 1987;
citing Statutory Construction, Ruben E. Agpalo, pp. 64-65, 1986, citing Manila
Race Horse Trainers' Assn. v. De la Fuente, 88 Phil. 60; Go Chiv. Go Cho,
96 Phil.
622; Hidalgo v. Hidalgo, 33 SCRA 105; Roa v. Collector of Customs, 23 Phil.
315; Villanueva v. City of lloilo, 26 SCRA 578; People v. Purisima, 86 SCRA
542;
us V. Go Chico, 14 Phil. 128.
e 608 SCRA 636, December 21,
2009

7 July 1998 and June 2001

a Journal, Senate 13th Congress 59th Session 1238 (January 23, 2007).

e Entltled "An Act Amending Section 450 of Republic Act No. 7160, Otherwise
Known as The Local Government Code of 1991, by Increasing the Average
Annual Income Requirement for a Municipality or Cluster of Barangays to be
Converted into a Component City."

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 Php 20 million average annual income to Php 100 mill
ion locally generated income.
In March 2001, S. Bill No. 2157 was signed into
law as Republic Act No. 9009 to take effect on June
30,
2001. As thus amended by Republic Act No. 9009, Sec.
450 of the LGC of 1991 now provides that "{a)
municipality x x .x may be converted into a component city if
it has a [certified] locally generated average annual income xx
x of at least [Php 100 million] for the last two (2)
consecutive years based on 2000 constant prices."

After the effectivity of RA 9009, the Lower

House of the 12th Congress adopted in July 2001
House Joint Resolution No. 2910 which, as its title
indicated, sought to exempt from the income
requirement prescribed in Republic Act No. 9009 the
24 municipalities whose conversions into cities were not
acted upon during the previous Congress. The 12th
Congress ended without the Senate approving H. Joint
Resolution No. 29.

Then came the 13th Congress,I which saw the

House of Representatives re-adopting H. Joint Resolution
No. 29 as H. Joint Resolution No. 1 and forwarding it
to the Senate for approval.

The Senate, however, again failed to approve the

joint resolution. During the Senate session held on
November 6, 2006, Senator Aquilino Pimentel, Jr. asserted
that passing H. Resolution No. 1 would, in net effect,
allow a wholesale exemption from the income
requirement imposed under Republic Act No. 9009 on the
municipalities. For this reason, he suggested the filing by
the House of Representatives of individual bills to pave
the way for the municipalities to become cities and then
forwarding them to the Senate for proper action.1

10 Entitled "Joint Resolution to Exempt Certain Municipalities Embodied in Bills

Flied in Congress Before June 30, 2001 from the Coverage of [RA] 9009."
Annex A," Memorandum of Petitioners.

11 July 2004 to June

2007

12 Journal, Senate 13th Congress, 59th Session, pp. 1238-40, cited in

Justice
Reyes' Dissent, p. 37.

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 Heeding the advice, sixteen (16) municipalities
filed, through their respective sponsors, individual
cityhood bills, Common to all 16 measures was a
provision exempting the municipality covered from the
Php 100 million income requirement.

As of June 7, 2007, both Houses of Congress had

approved the individual cityhood bills, all of which
eventually lapsed into law on various dates. Each
cityhood law directs the COMELEC, within thirty (30)
days from its approval, to hold a plebiscite to determine
whether the voters approve of the conversion.

As earlier stated, the instant petitions seek to

declare the cityhood laws unconstitutional for violation
of Sec. 10, Art. X of the Constitution, as well as for
violation of the equal-protection clause. The wholesale
conversion of municipalities into cities, the petitioners
bemoan, will reduce the share of existing cities in the
Internal Revenue Allotment (IRA), since more cities will
partake of the internal revenue set aside for all cities
under Sec. 285 of the LGC of 1991.13

As to the issue in the main, the issues to which all

others must yield pivot on whether or not the cityhood laws
violate (1) Sec. 10. Art. X of the Constitution and (2) the
equal protection clause.

The High Court held that --legislative intent is

part and parcel of the law, the controlling factor in
interpreting a statute. In construing a statute, the proper
course is to start out and follow the true intent of the
'Legislature and to adopt the sense that best harmonizes
with the context and promotes in the fullest manner the
policy and objects of the legislature. In fact, any
interpretation that runs counter to the legislative intent is
unacceptable and invalid. As emphasized at the outset,

13 Sec. 285 of the 1991 LGC provides: Allocation to Local Government

Units.-• The share of [LGUs] in the [IRA] shall be allocated in the following
manner: (a) Provinces-Twenty-three percent (23%); (b) Cities-Twenty-
three percent (23%); (c) Municipalities--Thirty-four percent (34%); and (d)
Barangays--Twenty percent (20%) Provided, however, That the share of
each province, city, and municipality shall be determined on the basis of
the following formula: (a) Population-Fifty percent (50%); (b) Land Area-
Twenty-five percent (25%); and
(c) Equal sharing-Twenty-five percent (25%) x xx
x

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 behind every law lies the presumption of
constitutionality. Consequently, to him who would assert
the unconstitutionality of a statute belongs the burden of
proving otherwise. Laws will only be declared invalid if
a
conflict with the Constitution is beyond
reasonable doubt. Unfortunately for petitioners and
petitioners-in• intervention, they failed to discharge their
heavy burden.

To be sure, courts, regardless of doubts they

might be entertaining, cannot question the wisdom of the
congressional classification, if reasonable, or the
motivation underpinning the classification. By the
same token, they do not sit to determine the
propriety or efficacy of the remedies Congress has
specifically chosen to extend. That is its prerogative. The
power of the Legislature to make distinctions and
classifications among persons is, to reiterate, neither
curtailed nor denied by the equal protection clause. A
law can be violative of the constitutional limitation
only when the classification is without reasonable basis.

In said law, the High Court declared that -The

constitutional protection extends to all persons, natural or
artificial, within the territorial jurisdiction; Artificial persons as
respondent Local Government Units (LGUs) herein are entitled to
protection only insofar as their property is concerned. The
equal protection guarantee is embraced in the broader and
elastic concept of due process, every unfair discrimination being
an offense against the requirements of justice and fair play. It has
nonetheless come as a separate clause in Sec. 1, Art. III of the
Constitution to provide for a more specific protection against
any undue discrimination or antagonism from government.
Arbitrariness in general may be assailed on the basis of the
due process clause. But if a particular challenged act partakes
of an unwarranted partiality or prejudice, the sharper weapon
to cut it down is the equal protection clause. This
constitutional protection extends to all persons, natural or
artificial, within the territorial jurisdiction. Artificial persons, as
the respondent LGUs herein, are, however,

I ·.

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 entitled to protection only insofar as their property is
concerned.I#

Without belaboring in their smallest details the arguments

for and against the procedural dimension of this disposition, it
bears to stress that the Court has the power to suspend its own
rules when the ends of justice would be served thereby. In the
performance of their duties, courts should not be shackled by
stringent rules which would result in manifest injustice. Rules of
procedure are only tools crafted to facilitate the attainment of
justice. Their strict and rigid application must be eschewed, if
they result in technicalities that tend to frustrate rather than
promote substantial justice. Substantial rights must not be
prejudiced by a rigid and technical application of the rules in the
altar of expediency. When a case is impressed with public
interest, a relaxation of the application of the rules is in order.
Time and again, this Court has suspended its own rules or
excepted a particular case from their operation whenever the
higher interests of justice so require.15

Thus, we interpret and apply the law not independently

of but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there are
some laws that, while generally valid, may seem arbitrary when
applied in a particular case because of its peculiar circumstances.
In such a situation, we are not bound, because only of our nature
and functions, to apply them just the same, is slavish obedience
to their language. What we do instead is find a balance between
the word and the will, that justice may be done even as the law
is obeyed.16

League of Cities of the Philippines (LCP) vs. Commission on Elections, 608

SCRA 636, December 21, 2009

• League of Cities of the Philippines (LCP) vs. Commission on Elections, 608

SCRA 636, December 21, 2009 · ·

10 Dumaguete Cathedral Credit Cooperative (DCCCO) vs. Commissioner of

Internal Revenue, 610 SCRA 652, January 22, 2010; citing Alonzo vs.
Intermediate Appellate Court, 150 SCRA 259, May 28, 1987

· ..
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 We need not belabor that what is within the spirit is within the law
even if it is not within the letter of the law because the spirit prevails over
the letter.7

Dumaguete Cathedral Credit

Cooperative vs. Commissioner
ofInternal Revenue\"

Petitioner Dumaguete Cathedral Credit

Cooperative (DCCCO) is a credit cooperative duly
registered with and regulated by the Cooperative
Development Authority (CDA). It was established on
February 17, 1968 with the following objectives and
purposes: (1) to increase the income and purchasing
power of the members; (2) to pool the resources of the
members by encouraging savings and promoting thrift to
mobilize capital formation for development activities;
and (3) to extend loans to members for provident and
productive purposes.

On November 27, 2001, the Bureau of Internal

Revenue (BIR) Operations Group Deputy Commissioner,
Lilian B. Hefti, issued Letters of Authority Nos. 63222 and
63223, authorizing BIR Officers Tomas Rambuyon and
Tarcisio Cubillan of Revenue Region No. 12, Bacolod
City, to examine petitioner's books of accounts and other
accounting records for all internal revenue taxes for the
taxable years 1999 and 2000.

On 2002, petitioner informed BIR that it would

only pay the deficiency withholding taxes corresponding
to the honorarium of the Board of Directors, security and
janitorial services, legal and professional fees for the year
1999 and 2000, excluding penalties and interest. After
payment, petitioner received from the BIR Transcripts of
Assessment and Audit Results/ Assessment
Notices, ordering petitioner to pay the deficiency
withholding taxes, inclusive of penalties, for the years
1999 and 2000.

17 Dumaguete Cathedral Credit Cooperative (DCCCO) vs. Commissioner of

Internal Revenue, 610 SCRRA 652, January 22, 2010; citing Tafiada and
Macapagal vs. Cuenco, et al., 103 Phil. 1051, 1086 (1957).

18 610 SCRA 652, January 22, 2010

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 Petitioner contended that under 24(B)(1) of the
NIRC applies only to banks and not to cooperatives, since
the phrase "similar arrangements" is preceded by terms
referring to banking transactions that have deposit
peculiarities. Therefore, the savings and time deposits of
members of cooperatives are not included in the
enumeration, and thus not subject to the 20% final tax.
Also, pursuant to Article XII, Section 15 of the
Constitution 25 and Article 2 of Republic Act No. 6938
(RA 6938) or the Cooperative Code of the Philippines,
cooperatives enjoy a preferential tax treatment which
exempts their members from the application of
Section
24(B)(l) of the NIRC.

Is petitioner liable to pay the deficiency

withholding taxes on interest from savings and time deposits
of its members for taxable years 1999 and 2000, and
the consequent delinquency interest of 20% per annum?
Per the High Court -petitioner is not liable to
pay.

The National Internal Revenue Code states that a

"final tax at the rate of twenty percent (20%) is hereby imposed
upon the amount of interest on currency bank deposit and
yield or any other monetary benefit from the deposit
substitutes and from trust funds and similar
arrangement x "for individuals under Section
24(B)(1) and tor domestie corporations under Section
27(D)(1). Considering the members' deposits with the
cooperatives are not currency bank deposits nor deposit
substitutes, Section 24(B)(1) and Section 27(D)(1),
therefore, do not apply to members of cooperatives and
to deposits of primaries with federations,
respectively.

Under Article 2 of Republic Act No. 6938, as

amended by Republic Act No. 9520, it is a declared
policy of the State to foster the creation and
growth of cooperatives as a practical vehicle for
promoting self• reliance and harnessing people power
towards the attainment of economic development and
social justice Thus, to encourage the formation of
cooperatives amd to create an atmosphere conducive to
their gmwth and development, the State extends all
forms of as
sistance to

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 them, one of which is providing cooperatives a
preferential tax treatment.

The legislative intent to give cooperatives a

preferential tax treatment is apparent in Articles 61 and
62 of Republic Act No. 6938, which read:

ART. 61. Tix Treatment of Cooperatives.

Duly registered cooperatives under this
Code which do not transact any business
with non• members or the general public
shall not be subject to any government
taxes and fees imposed under the Internal
Revenue Laws and other tax laws.
Cooperatives not falling under this article
shall be governed by the succeeding section.

ART. 62. Tax and Other Exemptions. •

Cooperatives transacting business with botl
members and nonmembers shall not be
subject to tax on their transactions to
members. Notwithstanding the provision of
any law or regulation to the contrary, such
cooperatives dealing with nonmembers shall
enjoy the following tax exemptions; x xx.

This exemption extends to members of

cooperatives. It must be emphasized that cooperatives
exist for the benefit of their members. In fact, the primary
objective of every cooperative is to provide goods and
services to its members to enable them to attain increased
income, savings, investments, and
productivity.
30 Therefore, limiting the application of the tax
exemption to cooperatives would go against the very
purpose of a credit cooperative. Extending the
exemption to members of cooperatives, on the other
hand, would be consistent with the intent of the
legislature.

The spirit, rather than the letter of a statute determines its

construction, hence, a statute must be read according to its
spirit or intent. For what is within the spirit is within the
statute although it is not within the letter thereof, and that
which is within the letter but not within the spirit is not
within the statute. Stated differently, a thing which is within
the intent of

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the lawmaker is as much within the statute as if within the
letter; and a thing which is within the letter of the statute is not
within the statute unless within the intent of the lawmakers.°

Tie clashing interests of the State d the taxpayers are again

pitted gist each ether. Two has:principles, the States inherent power of
taxation
r its declare peli of festering tie creation and growth of
copetites
cote into pl. Hewever. the ore that embodies the spirit ef the law and
the
true intent f the legislature
prea:ls.

Dumaguete Cathedral Credit Cooperative (DCCCO)

vs. Commissioner of Interal
Revenue•

Petitioner Dumaguete Cathedral Credit

Cooperative (DCCCO) is a dit cooperative duly
cer
registered with and regulated by the Cooperative
Development Authority (CDA). It was established on
February 17, 1968 with the following objectives and
purposes: (1) to increase the income and
purchasing power of the members; (2) to pool the
resources of the members by encouraging savings and
promoting thrift to mobilize capital formation for
development activities; and (3) to extend loans to
members for provident and productive purposes.

It has the power

(1)to draw, make, accept, endorse,

guarantee, execute, and issue
promissory notes, mortgages, bills of
exchange, drafts, warrants, certificates
and all kinds of obligations and
instruments in connection with and in
furtherance of its business
operations; and

(2)to issue bonds, debentures, and other

obligations; to contract
indebtednes s; and to secure the same
with a mortgage

19 Dumaguete Cathedral Credit Cooperative (DCCCO) vs. Commissioner of

Internal Revenue, 610 SCRA 652, January 22, 2010

3 610 SCA 652, January 22, 2010

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 or deed of trust, or pledge or lien on any
or all of its real and personal properties,

On November 27, 2001, the Bureau of Internal

Revenue (BIR) Operations Group Deputy Commissioner,
Lilian B. Hefti, issued Letters of Authority Nos. 63222 and
63223, authorizing BIR Officers Tomas Rambuyon and
Tarcisio Cubillan of Revenue Region No. 12, Bacolod
City, to examine petitioner's books of accounts and other
accounting records for all internal revenue taxes for the
taxable years 1999 and 2000.

On May 9, 2003, petitioner protested the Letters of

Demand and Assessment Notices with the Commissioner
of Internal Revenue (CIR). However, the latter failed to
act on the protest within the prescribed I80-day period.
Hence, on December 3, 2003, petitioner filed a Petition for
Review before the CTA, docketed as C.TA. Case No.
6827.

The CTA En Banc held that Section 57 of the

NIRC requires the withholding of tax at source.
Pursuant thereto, Revenue Regulations No. 2-98
was issued enumerating the income payments
subject to final withholding tax, among which is
"interest from any peso bank deposit and yield, or any
other monetary benefit from deposit substitutes and from
trust funds and similar arrangements x x x."
According to the CTA En Bane, petitioner's business
falls under the phrase "similar arrangements;" as
such, it should have withheld the corresponding
20% final tax on the interest from the deposits of its
members.

Petitioner raises the issue of whether or not it is

liable to pay the deficiency withholding taxes on interest
fromsavings and time deposits of its members for the taxable
years 1999 and
2000, as well as the delinquency interest of 20'% per
annum.

The High Court held that although the tax

exemption only mentions cooperatives, this should be
construed to include the members pursuant to Article 126 of
Republic Act No. 6938.
- This exemption extends to members of
cooperatives. It must be emphasized that
cooperatives exist for the benefit of their members. In
faet, the primary objective of every cooperative is to
provide goods and services to its

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 members to enable them to attain increased income,
savings, investments, and productivity. Therefore,
limiting the application of the tax exemption to
cooperatives would go against the very purpose of a
credit cooperative. Extending the exemption to members
of cooperatives, on the other hand, would be consistent
with the intent of the legislature. Thus, although the tax
exemption only mentions cooperatives, this should be
construed to include the members, pursuant to Article
126 of Republic Act No. 6938.

To encourage the formation of cooperatives and to create an

atmosphere conducive to their growth and development, the State
extends all forms of assistance to them, one of which is
providing cooperatives a preferential tax treatment. Under
Article 2 of Republic Act No. 6938, as amended by Republic
Act No. 9520, it is a declared policy of the State to foster the
creation and growth of cooperatives as a practical vehicle for
promoting self-reliance and harnessing people power
towards the attainment of economic development and social
justice. Thus, to encourage the formation of cooperatives and
to create an atmosphere conducive to their growth and
development, the State extends all forms of assistance to them,
one of which is providing cooperatives a preferential tax
treatment.2

BriefHistory of Law

Considering the American model and origin of the

Philippine constitution, it is not surprising that Filipino jurists
and legal scholars define and explain the nature of the
Philippine constitution in similar terms that American
constitutional law scholars explain their constitution. Chief
Justice Fernando, citing Laski, wrote about the basic purpose of a
civil society and government, viz.: "The basic purpose of a
State,
namely to assure the happiness and welfare of its citizens is kept
foremost in mind. To paraphrase Laski, it is not an end in itself
but only a means to an end, the individuals composing it in their
separate

21 Dumaguete Cathedral Credit Cooperative (DCCCO) vs. Commissioner of

Internal Revenue, 610 SCA 652, January 22, 2010

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 and identifiable capacities having rights which must be respected. It is
their happiness then, and not its interest, that is the criterion by
which its behavior is to be judged; and it is their welfare, and not the
force at
its command, that sets the limits to the authority it is entitled to
exercise." 22

It was Holmes who said that the life of the law has not
been logic; it has been experience. Thus the early Roman law
was ritualistic and highly formal. Gradually, however, it evolved
and form was replaced by substance. The development of the
law did not stop there. The Roman praetorian law enlarged,
supplemented and over-rode law which became narrow and
rigid in scope. Finally common law produced equity
jurisprudence. It is a formal set of legal and procedural rules and
doctrines to aid and even override common and statute law in
order to protect rights and enforce duties fixed by substantive
law.23

Invoking natural law because the history, tradition and moral

fiber of a people indubitably show adherence to it is an
altogether different story, for ultimately, in our political and legal
tradition, the people are the source of all government authority and
the courts are their creation-while it may be argued that the choice
of a school of legal thought is a matter of opinion, history is a fact
against which one cannot argue. -In deciding a case, invoking
natural law as solely
a matter of the judge's personal preference, invites criticism that
the decision is a performative contradiction and thus self•
defeating. Critics would point out that while the decision
invokes natural law that abhors arbitrariness, that same decision
is tainted with what it abhors as it stands on the judge's
subjective and arbitrary choice of a school of legal thought. Just
as one judge will fight tooth and nail to defend the natural law
philosophy, another judge will match his fervor in defending a

22Justice Puno, Separate Opinion; Republic vs. Sandiganbayan, 407 SCA

10, July 21, 2003

Dissenting opinion of Justice Abad Santos in Ilagan vs. Enrile, 139 SCA
·»...
23
349, October 21, 1985

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contrary philosophy he espouses. However, invoking natural
law because the history, tradition and moral fiber of a people
indubitably show adherence to it is an altogether different story,
for ultimately, in our political and legal tradition, the people are
the source of all government authority, and the courts are their
creation. While it may be argued that the choice of a school of
legal thought is a matter of opinion, history is a fact against
which one cannot argue and it would not be turning
somersault with history to say that the American Declaration of
Independence and the consequent adoption of a constitution
stood on a modern natural law theory foundation as this is
universally taken for granted by writers on government.24

Although Filipinos have given democracy its own Filipino face,

it is undeniable that our political and legal institutions are American
in origin; When government not only defaults in its duty but
itself violates the very rights it was established to protect, it
forfeits its authority to demand obedience of the governed and
could be replaced with one to which the people consent, and this
highest of rights the Filipino people exercised in the EDSA Revolution
of February 1986. Two facts are easily discernible from our
constitutional history. First, the Filipinos are a freedom-loving
race with high regard for their fundamental and natural
rights. No amount of subjugation or suppression, by rulers
with the same color as the Filipinos' skin or otherwise, could
obliterate their longing and aspiration to enjoy these rights.
Without the people's consent to submit their natural rights to
the ruler, these rights cannot forever be quelled, for like
water, seeking its own course and
level, they will find their place in the life of the individual and of
the nation; natural right, as part of nature, will take its own
course. Thus, the Filipinos fought for and demanded these rights
from the Spanish and American colonizers, and in fairly recent
history, from an authoritarian ruler. They wrote these rights in
stone in every constitution they crafted starting from the 1899
Malolos Constitution. Second, although Filipinos have given
democracy its own Filipino face, it is undeniable that our

24 Justice Puna, Separate Opinion; Republic vs. Sandiganbayan, 407 SCRA

10, July 21, 2003

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political and legal institutions are American in origin. The
Filipinos adopted the republican form of government that the
Americans introduced and the Bill of Rights they extended to
our islands, and were the keystones that kept the body politic
intact. These institutions sat well with the Filipinos who had
long yearned for participation in government and were jealous
of their fun damental and natural rights. Undergirding these
institutions was the modern natural law theory which stressed
natural rights in free, independent and equal individuals who
banded together to form government for the protection of their
natural rights to life, liberty and property. The sole purpose of
governm ent is to promote, protect and preserve these rights.
And when government not only defaults in its duty but itself
violates the very rights it was established to protect, it forfeits its
authority to demand obedience of the governed and could be
replaced with one to which the people consent. The Filipino
people exercised this highest of rights in the EDSA Revolution of
February 1986.25

Structure of Our Legal

System

To begin, the Philippine political structure is composed

of three equal and coordinate branches of government.

These branches of government are more particularly

described and referred to as follows:

a) The Executive;

b) The Legislative; and

c) The Judiciary.

It is- to be admitted that the functions of government in the

main are distributed to three departments, the legislative, the
executive, and. the judicial, which are independent, co-
ordinate

25Justice Puno, Separate Opinion; Republic vs. Sandiganbayan, 407 SCRA 10,
July 21, 2003

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and co-equal, with each of them having exclusive cognizance of
matters within its jurisdiction, supreme within its own sphere,
and free from interference in the exercise of powers entrusted to
it, subject to the scheme of checks and balances as
constitutionally ordained.26 It is likewise a truism that on the
legislature is vested 'the authority to make the laws, on the
executive to enforce them, and on 'the judiciary lo interpret
them in the course of deciding justiciable controversies of a
private as well as of a public character in the course of which the
legality of it he acts of the other two branches may be bested.
Petitioner would thus logically conclude that the dispute
between it and the three private respondents turning on their
respective rights under the private pension plan subsequently
integrated in the social security scheme, the courts, not
respondent Commission, constitute the appropriate forum for its
resolution.27

This is to ignore, however, that the principle of separation

of powers is a relative theory of government not to be enforced
with pedantic rigor. As a principle of statesmanship the practical
demands of statecraft would argue against its theoretical

26 Luzon Stevedoring Corporation vs. Social Security Commission, 34

SCRA
178, July 31, 1970; citing Cf. Angara v. Electoral Commission, 63 Phil. 139
(1936). The instances cited by Justice Laurel, who wrote the opinion for
the Court, are the power of the President to approve or disapprove
legislation, his veto however being subject to be over, ridden; his power to
convene the legislative body in special sessions; the power In turn of the
latter to confirm or reject Presidential appointments; its power not only to
apportion the jurisdiction of the courts but to determine what funds to
appropriate for their support; its power to impeach certain officials: and lastly
as far as the judiciary is concerned, its power of judicial review enabling it to
annul executive or legislative acts. .
.

21 Luzon Stevedoring Corporation vs. Social Security Commission, 34

SCRA
178, July 31,
1970

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 application.28 Justice Laurel, with vigor and clarity, expressed
the matter thus:

"The classical separation of governmental powers,

whether viewed in the light of the political philosophy
of Aristotle, Locke, or Montesquieu, or of the
postulations of
Mabini, Madison, or rson, is a relative theory of
Jefef
government. There is more truism and actuality
in
interdependence than in independence and separation of
powers, for as observed by Justice Holmes in a case
of
Philippine origin, we cannot lay down 'with mathematical
precision and divide the branches into watertight,
compartments' not only because 'the great ordinances of
the Constitution do not establish and divide fields of black
and white but also because 'even the more specific of them are
found to terminate in a penumbra shading gradually
from one extreme to the other."29

The basic philosophy of the presidential type of

government adopted in our Constitution was expounded with
force and lucidity by Justice Laurel in Villena vs. Secretary of
Interior30 in words the validity of which has not been impaired
by the passage of time.3

As restated by the late Justice Jose P. Laurel in the 1936

landmark case of Angara vs. Electoral Commission,32 "The
Constitution sets forth in no uncertain language the restrictions
and
limitations upon governmental powers and agencies. If these

28 Luzon Stevedoring Corporation vs. Social Security Commission, 34 SCRA

178, July 31, 1970; citing Cf. Richardson v. Scudder, 160 NE 655 (1928). As
Justice Cardozo pointed out: "The exigencies of government have made it
necessary to relax a merely doctrinaire adherence to a principle so flexible and
practical, so largely a matter of sensible approximation as the separation of
powers." · '

29 Planas v. Gil, 67 Phil. 62, 73-74 [1939]; citing Springer vs. Government
[928],
277 US 189; 72 Law. ed., 845, 852
.

30 67 Phil, 451 [1939]

31 Tecson vs. Salas, 34 SCRA 275, July 31,

1970

32 63 Phil. 134 (1936)

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 restrictions and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in
any living Constitution." Justice Laurel pointed out that in
contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed
upon the judiciary the great burden of "determining the nature,
scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other department xx x but only
asserts the solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them."33

The Executive

Refers to the branch of government that applies the law.

This branch is headed by the President. Under the President is
the Vice-President and the Cabinet Secretaries. Under the
doctrine of qualified political agency, the President discharges
his functions as chief executive officer and commander in chief
of the country through his Secretaries who run their respective
Departments. The President shall control of all the executive
departments, bureaus and offices. He shall ensure that the laws
be faithfully executed. This is a principle in political law that,
since the multifarious executive and administrative functions of
the Chief Executive are performed by and through executive
departments, it is but necessary that the acts of the secretaries of
departments when performed and promulgated in the regular
course of business or unless disapproved or reprobated by the

3 Ilagan vs. Enrile, 139 SCRA 349, October 21, 1985

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 Chief Executive, are presumptively the acts of the Chief
Executive.34

Thus, under this doctrine, all executive and

administrative organizations are adjuncts of the executive
department, and the multifarious executive and administrative
functions of the Chief Executive are performed by and through
the Executive Departments.35

The Legislative

Refers to the branch of government that makes the law.

This branch is composed of two chambers - the Senate or the
upper house and the House of Representatives, or lower house.
The head of the Senate is called a Senate President while the
head of the House of Representatives is called the Speaker of the
House. Each chamber has its respective officers, members and
term of office as provided for under the constitution. The
Constitution vests legislative power in a bicameral Congress of
the Philippines consisting of a Senate and a House of
Representatives. This is the authority, under the Constitution, to
make laws, and to alter and repeal them. 36

Eloquently restated the constitution is the shore of

legislative authority against which the waves of legislative
enactment may dash, but over which they cannot leap.37 The
power of Congress to enact legislative measures is plenary in
nature meaning that it can legislate laws and even amend,
modify or repeal existing laws enacted by a previous Congress.
The growing complexity of our society and government
structure has· so· revolutionized the powers and duties of the
legislative body such that its members are no longer confined to
. .

34 Villena vs. Secretary ofthe Interior, 67 Phil 464

35 DEN vs. DENR Region 12 Employees, 409 SCRA 359

36 Government of the Philippine Islands vs. Springer, 50 Phil. 276

37 1bid. .

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making laws they can perform such other functions, which
are, strictly speaking, not within the ambit of the traditional
legislative powers.38

It is the peculiar province of the legislature to prescribe

general rules for the government of society. The essential of the
legislative function is the determination of the legislative policy
and its formulation and promulgation as a defined and binding
rule of conduct.39

It must be borne in mind that subject to constitutional

limitations, Congress is empowered to define what acts or
omissions shall constitute a crime and to prescribe punishments
therefore.A0

The Judiciary

Refers to the branch of government that interprets the law.

This is represented by the Supreme Court. The head of the
Supreme Court is called a Chief Justice and joined by 14 other
Associate Justices. The Constitution is a definition of the powers
of government.

Who is to determine the nature, scope and extent of such

powers?

The Constitution itself has provided for the

instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the Legislature,
but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority

38Honasan II vs. Panel of the Investigating Prosecutors of the DOJ, 427

SCRA
46

39 Occena vs. COMELEC, 95 SCRA 759 » «

40 Executive Secretary vs. CA, 429 SCRA 81

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under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution.

A provision which has been introduced by the 1987

Constitution is a definition, for the first time in our fundamental
law, of the term "judicial power," as such authority and duty of
courts of justice "to settle actual controversies involving rights which
are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion, amounting to lack
or excess of jurisdiction, on the part of any branch or
instrumentality of the Government" .42

As the constitution vests judicial power in one Supreme

Court and in such lower courts as may be established by law
judicial power, by its nature, is the power to hear and decide
causes pending between parties who have the right to sue and
be sued in the courts of law and equity.

Although holding neither purse nor sword and so

regarded as the weakest of the three departments of the
government, the judiciary is nonetheless vested with the power
to annul the acts of either the legislative or the executive or of
both when not conformable to the fundamental law. This is the
reason for what some quarters call it the doctrine of judicial
supremacy. Even so, this power is not lightly assumed or readily
exercised. The doctrine of separation of powers imposes upon
the courts a proper restraint, born of the nature of their functions

41Angara vs. Electoral Commission; G.R. No. 45081. July 15,

1936

42Kilosbayan vs. Morato G.RR. No. 118910. July 17,

1995

43 Lamb vs. Phipps, 22 Phil.

559

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and of their respect for the other departments, in striking down
the acts of the legislative and the executive as unconstitutional.44

The Constitution is basically a charter of limitations of

governm ental power and enshrines a system of separation of
powers and checks and balances under which no man is the law
nor above the law. It ordains the weakest department, the
Supreme Court, as the guardian and final arbiter of the
Constitution. It postulates and requires a free and independent
judiciary, sworn to defend and enforce the Constitution and the
law without fear or favor. It mandates that civilian authority is at
all times supreme over the military. Like His Holiness, the Pope,
the Supreme Court has no battalions, tanks or guns to enforce its
decisions. Its strength lies in that its verdicts would be obeyed
by the sheer moral force and truth of its judgments for as long as
the Court kept the faith and confidence reposed in it by the
people through the Constitution to render justice and sustained
their moral conviction that through the Supreme Court, justice
and the voice of reason and truth would prevail in the end.
Under the Rule of Law, "Judicial decisions applying or
interpreting the laws or the Constitution shall form apart of the legal
system of the Philippines"45 and the Executive and all its offices
and agencies, and particularly the military, are called upon to
execute the laws as so interpreted and adjudged by the courts.#6

Note, however, that the Court may exercise its power of

judicial review only if the following requisites are present: (1) an
actual and appropriate case and controversy exists; (2) a
personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review
is

44Association of Small Landowners vs. Secretary of Agrarian Reform; G.RR. No.

78742. July 14, 1989 .- ..r

45 Art. 8, Civil Code

48 Ilagan vs. Enrile, 139 SCRA 349, October 21, 1985 2+ ••

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 pleaded at the earliest opportunity; and (4) the constitutional
question raised is the very lis mota of the case.5

Judicial review exists precisely to test the validity

of executive or legislative acts in an appropriate legal
proceedings; there is always the possibility of their being
declared inoperative and void. Realism compels the
acceptance of the though that there would be a time-lag
between the initiation of such presidential or congressional
exercise of power and the final declaration of nullity. In the
meanwhile, it would be productive of confusion, perhaps at
times even of chaos, if the parties affected were left free to
speculate as to its fate being one of doom, this leading them
free to disobey in the meanwhile. Since, however, the orderly
processes of government, not to mention common sense,
requires that the presumption of validity be accorded an act
of Congress or an order of the President. It would be less
than fair, and it may productive of injustice, if no notice of its
assistance as a fact be paid to it, even if thereafter, it is stricken
down as contrary, in the case of Presidential act, either to the
Constitution or a controlling statute.8

A justiciable controversy involves a definite and

concrete dispute touching on the legal relations of the
parties having adverse legal interest.9 As for the third
requisite for judicial review, it should not be taken to mean that
the question of constitutionality must be raised immediately
after the execution of the state action complained of -
that the question of constitutionality has not been raised
before is not a valid reason for refusing to allow it to be raised
later.50

Constitutional Commissions

Arceta vs. Mangrobang, 432 SCRA 136

48 Municipality of Malabang vs. Benito, 27 SCA 533

49 Sanlakas vs. Executive Secretary, 421 SCRA 656

5 La Bugal-B'Laan Tribal Association, Inc. vs. Ramos, 421 SCRA 148

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 The 1987 Philippine Constitution created three (3)
independent commissions the Civil Service Commission
(CSC), the Commission on Elections (COMELEC) and the
Commission on Audit (COA). To ensure their independence,
these constitutional commissions enjoy fiscal autonomy
meaning their approved annual appropriations are
automatically and regularly released.

Article IX of the Constitution states in no uncertain terms

that only the CSC, the Commission on Elections, and the
Commission on Audit shall be tagged as Constitutional
Commissions with the appurtenant right to fiscal autonomy.
Thus: Sec. 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission
on Elections, and the Commission on Audit.51

It should be noted that the Constitution provides for

stringent conditions if one is to be a member of said
constitutional commissions. It explicitly states that no member
of a constitutional commission shall, during his tenure, hold any
other office or employment. Neither shall he engage in the
practice of any profession or in the active management or
control of any business which in any way be affected by the
functions of his office, nor shall he be financially interested,
directly or indirectly, in any contract with, or in any franchise or
privilege granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-owned or
controlled corporation or their subsidiaries. Moreover, their
salaries are fixed by law and cannot be decreased during their
tenure.

Without diminishing, increasing or modifying substantive

rights, these constitutional commissions are allowed by the
Constitution to promulgate its own rules concerning pleadings
and practice before it or before any of its offices. The
Constitution further provides that each commission shall decide

51Commission on Human Rights Employees' Association (CHREA) vs.

Commission on Human Rights, 444 SCRA 300, November 25, 2004

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by a majority vote of all its members any case or matter brought
before it within sixty days from the date of its submission for
decision or resolution. Please note that a case or matter is
deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required. Finally, any
decision, order, or ruling may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.

The Civil Service Commission

The civil service embraces all branches, subdivisions,

instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original
charters.

Article IX-B of the 1987 Constitution entrusts to the Civil

Service Commission the administration of the civil service,
which is comprised of "all branches, subdivisions
instrumentalities, and agencies of the Government, including
government-owned or • controlled corporations with original
charters."52

As can be inferred from its name the Civil Service

Commission (CSC) serves as the human resource agency of the
entire Philippine bureaucracy tasked with the formulation,
monitoring and implementation of quality standards in public
service based on a merit system. The civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters.

The Civil Service Commission is one of the three

independent Constitutional Commissions invested with
adjudicative powers to render final arbitration on disputes and

52 Career Executive Board vs. Civil Service Commission, 819 SCRA 482
[2017]

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personnel actions involving matters relating to the Civil
Service.53

Book V, Title I, Subtitle A, Chapter 3, Section 12 thereof

enumerates the specific powers and functions of the Civil
Service Commission while recognizing its comprehensive
authority over all civil service matters.5+ The Administrative
Code of 1987 also gave the Civil Service Commission the power
to "prescribe, amend and enforce regulations an rules for carrying into
effect the provision of the Civil Service Law and other
pertinent laws."55

The Supreme Court has ruled that the only function of the
Civil Service Commission is merely to ascertain whether the
appointee possesses the minimum requirements under the law;
if it is so, then the CSC has no choice but to attest to such
appointment.56 The Civil Service Commission is, in any case,
vested with jurisdiction to review the decision of the appointing
authority.57

Although public servants are protected from removal or

suspension without just cause they are, however, prohibited
from engaging directly or indirectly, in any electioneering or
partisan political campaign. Since the Civil Service Commission
is the central personnel agency of the government, the
Constitution mandates that it shall establish a career service and
adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil
service. It is also mandated to strengthen the merit and rewards
system, to integrate all human resources development programs

53 Feliciano vs. Department of National Defense, 844 SCA 401 [2017]

54 Career Executive Board vs. Civil Service Commission, 819 SCRA 482 [2017]

55 Galindo vs. Commission on Audit, 814 SCRRA 73 [2017]

.
5s Cerilles vs. Civil Service Commission, 846 SCRA 15 [2017]
'.'
57 1bid.

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 for all levels and ranks, and to institutionalize a management
climate conducive to public accountability.

Since public office is a public trust, appointments in the

civil service shall be made only according to merit and fitness to
be determined, as far as practicable, and, except to positions
which are policy-determining, primarily confidential, or highly
technical, by competitive examination. Although public
servants are protected from removal or suspension without just
cause they are, however, prohibited from engaging directly or
indirectly, in any electioneering or partisan political campaign.

Since the Civil Service Commission is the central

personnel agency of the government, the Constitution mandates
that it shall establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It is also
mandated to strengthen the merit and rewards system, to
integrate all human resources development programs for all
levels and ranks, and to institutionalize a management climate
conducive to public accountability.

"It is well settled that the determination of tire kind of appointment

to be extended lies in the official vested by law with the appointing power and
not the Civil Service Commission. The Commissioner of Civil Service is
not empowered to determine the kind or nature of the appointment extended
by the appointing officer. When the appointee is qualified, as in this
case, the Commissioner of Civil Service has no choice but to attest to the
appointment"

Luego vs. CSC58

Petitioner's permanent appointment as

Administrative Officer II, Office of the City Mayor, Cebu
City, was initially approved as "temporary," by the CSC
subject to the final action taken in the protest filed by
other parties who vied for the position. Subsequent
thereto, the CSC found petitioner's rival better qualified
for the contested position thereby revoking his
appointment.

58 G.R. No. L-69137. August 5, 1986

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 In setting aside the decision of the CSC, the
Supreme Court held that --the Civil Service Commission
is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its
authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil
Service Law. When the appointee is qualified and all the
other legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in
accordance with the Civil Service Laws.

This ruling was later on reinforced in a number of cases

more memorably in Lapinid vs. CSC59 where the High Court
through the lyrical prose of Justice Cruz declared that
the determination of who among several candidates for a
vacant position has the best qualifications is vested in the
sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission. Every
particular job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of
academic units in a certain course, seminars attended, etc., may
be valuable but so are such intangibles as resourcefulness,
team spirit, courtesy, initiative, loyalty, ambition, prospects
for the future, and best interests of the service. Given the
demands of a certain job, who can do it best should be left to
the Head of the Office concerned provided the legal
requirements for the office are satisfied. The Civil Service
Commission cannot substitute its judgment for that of the
Head of Office in this regard.

The Commission on Elections

In the present set-up of the COMELEC, the Supreme

Court observed that the present Constitution upgraded to a
constitutional status the aforesaid statutory authority to
grant the Commission broader and more flexible powers to
effectively perform its duties and to insulate it further
from legislative intrusions. Doubtless, if its rule-making
power is made to

59 G.R. No. 96298. May 14, 1991

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depend on statutes, Congress may withdraw the same at any
time. Indeed, the present Constitution envisions a truly
independent Commission on Elections committed to ensure free,
orderly, honest peaceful and credible elections, and to serve as
the guardian of the people's sacred right of suffrage the
citizenry's vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability.60

In a similar fashion, due regard to the independent

character of the Commission on Elections, as ordained in the
Constitution requires that the power of the Supreme Court to
review the acts of that body should, as a general proposition, be
used sparingly, but firmly in appropriate cases.6

"Hence, the present Constitution upgraded to a constitutional

status the aforesaid statutory authority to grant the Commission broader
and more flexible powers to effectively perform its duties and to insulate it
further from legislative intrusions. Doubtless, if its rule-making power is made
to depend on statutes, Congress may withdraw the same at any time.

"Indeed, the present Constitution envisions a truly independent

Commission on Elections committed to ensure free, orderly, honest. peaceful
and credible elections, and to serve as the guardian of the people's sacred
right of suffrage the citizenry's vital weapon in effecting a peaceful
change of government and in achieving and promoting political stability."

Gallardo vs. Tabamo62

A petition for certiorari and prohibition was filed

by then GoGallardo against Judge Tabamo seeking to
restrain the latter from continuing with the judicial
proceedings then pending against the former.

Petitioner posited the argument that the said case

principally involves an alleged violation of the
provisions

60 Galardo vs. Tabamo; G.R. No. 104848. January 29, 1993

81 Information Technology Foundation of the Philippines vs. COMELEC, SCRA 141

62

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 of the Omnibus Election Code the jurisdiction over which
is exclusively vested in the Commi ssion on Elections
(COMELEC).

In reservedly agreeing with the contention of the

petitioner the High Court ruled that since the case
pending before the RIC involved the enforcement of
election-related laws, it properly belongs within the
ambit of the COMELEC and not the RTC.

The Commission on Elections is vested by the

Constitution with exclusive charge of the enforcement
and administration of all laws relative to the conduct of
elections; hence, the assumption of jurisdiction by the
trial court over a case involving the enforcement of the
election code is at war with the plain constitutional
command, the implementing statutory provisions and the
hospitable scope afforded such grant of authority so clear
and unmistakable in recent decisions

The Commission on Elections, as an independent

Constitutional Commission, is clothed with the three powers of
government executive or administrative, legislative and
quasi-judicial powers.6 As the body mandated by the
Constitution to enforce and administer all laws relative to the
conduct of elections, it is the bounder duty of the COMELEC to
ensure that the will of the electorate prevails.64

The Commission on
Audit

The Commission on Audit (COA) is the government's

watchdog on the disbursement and use of public funds. The
Constitution specifically vests in the Commission on Audit the
authority to determine whether the government entities comply
with laws and regulations in disbursing government funds.65

63 Cipriano vs. COMELEC, 436 SCRA 45

64 Salic vs. COMELEC, 425 SCRA 735

65 De Jesus vs. COA, 422 SCRA 287

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 It is mandated to determi ne wheth er governm ent
entities comply with laws and regulations in disbursin g
government fun ds, and to disallow illegal or irregular
disbursements of governm ent funds.°

Simply put, the Comm ission on Audit is the central

auditor of the governm ent. Th e exercise of the COA of
its general audit power is among the constitutional
mechanisms that give life to the check-and-balance system
inherent in a republican form of government.6

In Dingcong vs. Cuingona68, the Supreme Court observed

that - not only is the Commission on Audit (COA) vested with the
power and authority, but it is also charged with the duty, to examine,
audit and settle all accounts pertaining to ... the expenditures or uses
offunds ... owned ... by, or pertaining to, the Government or any
of its subdivisions, agencies, or instrumentalities (Article IX[DJ,
Section
2[11, 1987 Constitution).

Not only is the COA empowered by the constitution to

conduct a post-audit69 but it also has the power to audit non•
governmental entities receiving subsidy from or through the
government.70

Recommended Individual or
Group Reading and Reporting

The following legal articles, cases, SCRA annotations,

news articles taken from various sources and internet sites
may be

66 KMG vs. COA, 437 SCRA 371

67 CIR vs. COA; G.RR. No. 101976. January 29, 1993

68 G.RR. No. 76044. June 28, 1988.

69 DBP vs. COA; 231 SCRA 202

70 Blue Bar vs. Tantuico; 163 SCRA 716

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used as a contextual backdrop for use in individual or group
reports and discussions, whenever appropriate or applicable:

1. Tecson vs. Salas, 34 SCRA 275, July 31,

1970;

2. Francisco vs. Nagmamalasakit na mga

Manananggol ng mga Manggagawang
Pilipino, 415 SCRA 44, November 10, 2003;

3. Estrada vs. Dcsicrto, 353 SCRA 452, March

02, 2001;

4. Alonzo vs. Intermcdiate Appellate Court,

G.R. No. 72873, May 28, 1987;

League of Cities of the Philippines vs.

Commission on Elections, G.R. No. 176951,
December 21, 2009; and

6. Dumaguete Cathedral Credit Cooperative vs.

Commissioner of Internal Revenue, G.R.
No.
182722, January 22, 2010.

• '2

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CHAPTER2
Schools of Thought

"Freedom of men under government is to have a

standing rule to live by, common to every one of that
society, and made by the legislative power vested in it; a
liberty to follow my own will in all things, when the rule
prescribes not, and not to be subject to the inconstant,
uncertain, unknown, arbitrary will of another man."

- John Locke
On Government Bk. X, ch. 4

Classical Theories

According to Prof. Lohel Martirez there are two

theories as to what philosophy should underlie the criminal
law system: the classical or juristic and the positivist or
realistic. To the classicist, specifically the framers of the Spanish
Penal Code of 1870, man is essentially a moral creature with
an absolutely free will to choose between good and evil. They
assert that man should only be adjudged or held accountable
for wrongful acts so long as free will appears unimpaired. In
working out this theory, the Penal Code of 1870 placed more
stress upon the effect or result of the felonious act than upon
the man -criminal himself, and endeavored to establish a
mechanical and direct proportion between crime and penalty.
However, eventually the classical method of considering the
offender as an abstract being, and of prefixing for him, through a
series of hard-and-fast rules,
a great multitude of penalties with scant regard to the human
element, found stubborn and severe critics in the persons of Dr.

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Cesare Lombroso and Professors Rafael Garofalo and Enrico
Ferri, who were the forerunners and founders of the positivist
school of criminology.71

The positivist theory deviates from the classical in the

conception of crime and of the criminal. To the positivist, free
will is a myth, a figment of the imagination, or at least a
debatable matter. The positivist hold that man is subdued
occasionally by a strange and morbid phenomenon which
constrains him to do wrong, in spite of or contrary to his
volition. It is for this reason that the central idea of all positivist
thinking is the defense of the community from anti-social
activities, whether actual or potential, against the morbid type of
man who is called a "socially dangerous person." To forestall the
social danger and to achieve social defense, the positivist
philosophy has thus chosen a different path. Premised upon the
proposition that man is primary, while the deed is only
secondary, the new school takes the view that a crime is
essentially a social and natural phenomenon, and as such it
cannot be treated and checked by the application of abstract
principles of law and jurisprudence nor by the imposition of a
punishment, fixed and determined a priori; but rather through
the enforcement of individual measures in each particular case
after a thorough, personal and individual investigation
conducted by a competent body of psychiatrists and social
scientists. 72

Natural Law

Natural law theory proposes that there is a link or

relationship between concepts of law and morality. As it stands,
one can fully appreciate the nature of law through a necessary
reference to established
.
precepts of morality.
' ''

71 Martiez Lohel. Annotation: Rape Under Paragraph 3 of Article 335 Of

The
Revised Penal Code, 95 SCRA 652, January 28,
1980

72Martiez, Lohel. Annotation: Rape . Under. Paragraph 3 of Article 335 Of

The Revised Penal Code, 95 SCRA 652, January 28, 1980; citing Report of the
Code Commission, XVI L.J., 19-20

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 7

It may very well be, as noted by jurists of repute, that to

stress the element of a promise as the basis of contracts is to
acknowledge the influence of natural law.73 Nonetheless, it does
not admit of doubt that whether under the civil law or the
common law, the existence of a contract is unthinkable without
one's word being plighted. So the New Civil Code provides: "A
contract is a meeting of minds between two persons whereby one
binds himself, with respect to the other, to give something or to render
some service."74 So it is likewise under American law. Thus:

"A contract is a promise or a set of promises for

the breach of which the law gives a remedy, or the
performance of which the law in some way recognizes as a
duty."75

The law may go further and require that certain

formalities be executed. Thus, for a mortgage to be validly
constituted, "it is indispensable, x xx, that the document in which it
appears be recorded in the Registry of Property." The same
codal
provision goes on: "If the instrument is not recorded. the mortgage
is
nevertheless binding between the parties."76

Natural Law; With the establishment of civil government and a

constitution, there arises a conceptual distinction between natural rights
and

73 Mobil Oil Philippines, Inc. vs, Diocares, 29 SCRA 656, September 30,
1969;
citing Cohen and Cohen, Readings in Jurisprudence and Legal Philosophy,
p.
102 (1951), citing Chief Justice Marshall in Sturges vs. Crowninshield, 4
Wheat
122 (1819) and Chief Justice Taney in Charles River Bridge vs. Warren
Bridge,
11 Pet. 420

74 Mobil Oil Philippines, Inc. vs, Diocares, 29 SCRA 656, September 30,
1969;
citing Art..1806, The New Civil
Code.

75 Mobil Oil Philippines, Inc. vs, Diocares, 29 SCRA 656, September 30,
1969;
citing American Law Institute, Restatement of the Law on Contracts, p.
1(1932).

76 Mobil Oil Philippines, Inc. vs, Diocares, 29 SCRA 656, September 30,
1969; citing Art 2125 of the New Civil Code provides: "In addition to the
requisites stated in article 2085, it is indispensable, in order that a mortgage
may be validly constituted, that the docu ment in which it appears be recorded in
the Registry of Property. If the instrument is not recorded, the mortgage is
nevertheless binding between the parties."

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 civil rights, difficult though to define their scope and delineation. - With
the establishment of civil government and a constitution, there arises a
conceptual distinction between natural rights and civil rights, difficult
though to define their scope and delineation. It has been proposed that
natural rights are those rights that "appertain to man in right of his
existence." These were fundamental rights endowed by God upon human
beings, "all those rights of acting as an individual for his own comfort
and happiness, which are not injurious to the natural rights of others."
On the other hand, civil rights are those that "appertain to man in right of
his being a member of society." These rights, however, are derived from the
natural rights of individuals since: "Man did not enter into society to become
worse off than he was before, nor to have fewer rights than he had before,
but to have those rights better secured. His natural rights are the
foundation of all his rights." Civil rights, in this sense, were those natural
rights --particularly rights to security and protection which by
themselves, individuals could not safeguard, rather requiring the collective
support of civil society and government, Thus, it is said: "Every civil right
has for its foundation, some natural right pre-existing in the individual, but
to the enjoyment of which his individual power is not, in all cases,
sufficiently competent."7

Republic of the
Philippines vs.
Sandiganbayan78

This is a petition for certiorari seeking to set aside the

Resolutions of the Sandiganbayan dated November 18,
1991 and March 25, 1992 which dismissed the petition to
amend complaint and ordered the returned of the confiscated
items to respondent Elizabeth Dimaano while the second
Resolution denied petitioners Motion for Reconsideration.

President Corazon Aquino immediately upon

assuming office in Malacanang issued Executive No. 1
(EO No. 1) creating the Presidential Commission on Good
Governance (PCGG). The Commission's primary task is
to recover all ill- gotten wealth of Former President
Ferdinand Marcos, his relatives, subordinates and close
associates. The PCGG had its power to conduct
investigation as may be necessary in order to accomplish
and carry out the purposes of this order and the power to
promulgate such rules and regulations as may be

77 Separate Opinion, Justice Puna; Republic vs. Sandiganbayan, 407 SCA

10, July 21, 2003

78 GR No. 104768

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 necessary to carry out the purpose of the order. Through
PCGG's chairman Jovito Salonga, created an APP Anti•
Graft Board task to investigate reports of unexplained
wealth of military personnel.

On July 27, 1987, the AFP Board issues a

resolution and findings on Ramas' alleged ill-gotten
wealth, evidenced showed that Ramas owns various
property. Affidavits submitted by the members of the
military security units disclosed that Elizabeth Dimaano
is the mistress of General Ramas. Th e Board then
conducted searches in the premises of Dimaano, during
that time Dimaano was not in her house, and found
communication equipment and facilities which belongs
to the military, also the board confiscate money
amounting to 50,000. The board believes that the items
could not have been in the possession of Dimaano if not
for Ramas. It is recommended that Ramas be prosecuted
and tried for violation of Anti-Graft and Corruption
Practices.

The petitioner wants the Court take judicial notice

that the raiding team conducted the search and seizure,
five days after the successful EDSA revolution. The
contention of the petitioner that a revolutionary
government was operative at that time, and such the
operation of the 1973 Constitution which guaranteed
private respondents exclusionary right is withheld.

Was the search conducted in the house of

Dimaano legal, invoking her right against unreasonable
search and seizure?

The search conducted by the team is valid. The

search and seizure is valid as to the specific items
indicated in the warrant but not with the money
confiscated which is excluded in the search warrant.
Contentions of the petitioner are affirmed by the Court.
Stating that at the time of the search there exist a
revolutionary government bound by no constitution. No
one can questioned the seizure orders as violative of the
Bill of Rights provided in 1973 Constitution.

As to the Separate Opinion of Justice Puno he

disagreed with the conclusion that the private respondent

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 cannot invoke the right against unreasonable search and
seizure and the exclusionary right. Justice Puno uses the
natural law point of view in explaining his position in the
said matter. He states that natural law theory, the
emphasis was placed on moral duties of man-both rulers
and subject rather than on rights of the individual citizen,
this developed theory gives particular emphasis to the
individual and his natural rights. He then states that the
right to be safe and protected is part of the natural right
of a person. Thus Dimaano can invoke the right against
unreasonable search and seizure, it is her natural right.
Human beings has a natural right to life, liberty and
property which can exercise regardless of existing or non•
existing laws and irrespective of the will or lack of will of
the governments.

Thus, the High Court observed that with the

establishment of civil government and a constitution, there
arises a conceptual distinction between natural rights and civil
rights, difficult though to define their scope and delineation. It
has been proposed that natural rights are those rights that
"appertain to man in right of his existence. These
11

were fundamental rights endowed by God upon human beings,

"all those rights of acting as an individual for his own comfort
and happiness, which are not injurious to the natural rights of
others." On the other hand, civil rights are those that "appertain to
man in right of his being a member of society. These rights,
11

however, are derived from the natural rights of individuals

since: "Man did not enter into society to become worse off than he
was before, nor to have fewer rights than he had before, but to
have those rights better
secured. His natural rights are
.
the foundation
I,.
of all his
. .
rights." Civil
rights, in this sense, were those natural rights -particularly
rights to security and protection -which by themselves,
individuals could not safeguard, rather requiring the collective
support of civil society and government, Thus, itis said: "Every
civil right has for its foundation, some natural right pre-existing in the
individual, but to the enjoyment of which his individual power is
not, in all cases, sufficiently competent."79 •
+· : L'
+
+"

- -
79 Republic vs. Sandiganbayan, 407 SCA 10, July 21, 2003

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 Legal Positivism

According to Wrenns -opposed to all forms of

naturalism is legal positivism, which is roughly constituted
by three theoretical commitments:

(a) The Social Fact Thesis It asserts that

legal validity is a function of certain social
facts. Borrowing heavily from Jeremy
0
Bentham, John Austin (1995) argues
that the principal distinguishing feature
of a legal system is the presence of a
sovereign who is habitually obeyed by
most people in the society, but not in the
habit of obeying any determinate human
superior. On Austin's view, a rule R is
legally valid (that is, is a law) in a
society S if and only if R is
commanded by the sovereign in S and is
backed up with the threat of a sanction.
The relevant social fact that confers
validity, on Austin's view, is promulgation
by a sovereign willing to impose a
sanction for noncompliance;"

(b)The Conventionality Thesis It proposes

that it is a conceptual truth about law that
legal validity can ultimately be explained
in terms of criteria that are authoritative in
virtue of some kind of social convention.
Thus, for example, H.LA. Hart (1996)
believes the criteria of legal validity are
contained in a rule of recognition that sets
forth rules for creating, changing, and

so ·Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia of

Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, Accessed 1 March 2020.

e Naturalistic Epistemology,' by Chase B. Wrenn, The Internet Encyclopedia of

Philosophy. ISSN 2161-0002, https://www.lep.utm.edu/, Accessed 1 March 2020.

42

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•
 adjudicating law. On Hart's view, the rule
of recognition is authoritative in virtue of
a convention among officials to regard its
criteria as standards that govern their
behavior as officials. While Joseph Raz
does not appear to endorse Hart's view
about a master rule of recognition
containing the criteria of validity, he also
believes the validity criteria are
authoritative only in virtue of a
convention among officials;8 and

(c) The Separability Thesis - This is more

commonly interpreted as making only an
object-level claim about the existence
conditions for legal validity. As Hart
describes it, the Separability Thesis is no
more than the "simple contention that it is in
no sense a necessary truth that laws
reproduce or satisfy certain demands of
morality, though in fact they have often
done so."83 Insofar as the object-level
interpretation of the Separability Thesis
denies it is a necessary truth that there are
moral constraints on legal validity, it
implies the existence of a possible legal
system in which there are no moral
constraints on legal validity.84

The Social Fact Thesis (which is also known as the Pedigree

Thesis) asserts that it is a necessary truth that legal validity is
ultimately a function of certain kinds of social facts. The
Conventionality Thesis emphasizes law's conventional nature,

a2 "Naturalistic
Epistemology," by Chase B. Wrenn, The Internet Encyclopedia of
Philosophy, ISSN 2161-0002, https://www.iep.utm.edul, Accessed 1 March 2020.

83 Citing Hart 1994, pp. 181-82

84"Naturalistic Epistemology," by Chase 8. Wrenn, The Internet Encyclopedia of

Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, Accessed 1 March 2020.

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claiming that the social facts giving rise to legal validity are
authoritative in virtue of some kind of social convention. The
Separability Thesis, at the most general level, simply denies
naturalism's Overlap Thesis; according to the Separability
Thesis, there is no conceptual overlap between the notions of
law and morality.85

The doctrine of non-suability recognized in this

jurisdiction even prior to the effectivity of the Constitution is a
logical corollary of the positivist concept of law which to
paraphrase Holmes negates the assertion of any legal right as
against the state, in itself the source of the law on which such a
right may be predicated. Nor is this all. Even if such a principle
does give rise to problems considering the vastly expanded role
of government enabling it to engage in business pursuits to
promote the general welfare, it is not obeisance to the analytical
school of thought alone that calls for its continued applicability.
Why it must continue to be so, even if the matter be viewed
sociologically, was set forth in Providence Washington
Insurance vs. Republic thus: "Nonetheless, a continued adherence to
the doctrine of non-suability is not to be deplored for as against the
inconvenience that may be caused private parties, the loss of
governmental efficiency and the obstacle to the performance of its
multifarious Junctions are Jar greater if such a fundamental
principle were abandoned and the availability of judicial remedy
were not thus restricted. With the well known propensity on the part
of our people to go to court, at the least provocation, the loss of time
and energy required to defend against law suits, in the absence of
such a basic principle that constitutes such an effective obstacle,
could very well be imagined."86

According to Nitafan - Sir John Austin, one of the

well• known positivists, laid down the distinction between
positive law and natural law, contradicting Blackstone's
Commentaries

85 "Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia

of
Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, Accessed 1
March
2020.

ea Switzerland General Insurance vs. Republic, 32 SCA 227 [1970]

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of the Laws of England, that positive law is void if it not in
accordance with the natural law. In one of his lecture, Austin
formulated:87

"What appears pernicious to one person may appear

beneficial to another ... To prove by pertinent reasons that
a law is pernicious is highly useful, because such process
may lead to the abrogation of the pernicious law. To incite the
public to resistance ... may be useful, for resistance grounded
on clear and definite prospects of good is sometimes
beneficial. But to proclaim generally that all laws which
are pernicious or contrary to the will of God are void and not
to be tolerated, is to preach anarchy, hostile and prelious as
much to wise and
benign rule as to stupid and galling tyranny."88

More than a century before Austin, Thomas Hobbes

already generally recognized the concept of law in terms of legal
positivism. Hobbes advanced the idea that it is improbable for
any statute to be unjust. In his Leviathan, Hobbes wrote that
"before the names ofjust and unjust can take place, there must be
some coercive power to compel men equally to the performance of
their covenants ... and such power there is none before the
creation of a commonwealth." Austin embedded in his
jurisprudence the idea of Thomas Hobbes. Both were
perplexed by the fact that there are rules of action that are
morally desirable but are not enacted into laws.89

Positivism and the Separation Thesis

What may be right, may not be moral.

07 Nitafan, David: Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08,
1992

88 Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08, 1992; citing Lectures on Jurisprudence, 215-216 (Library of
Ideas, ed.).

89Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08, 1992

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 The final thesis comprising the foundation of legal
positivism is the Separability Thesis. In its most general for
the Separability Thesis asserts that law and morality a
conceptually distinct.9o

More commonly, the Separability Thesis is interpreted as

making only an object-level claim about the existence condition¢
for legal validity. As Hart describes it, the Separability Thesis
is no more than the "simple contention that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done so"9 Insofar as the
object-level interpretation of the Separability Thesis denies it is a
necessary truth that there are moral constraints on legal validity,
it implies the existence of a possible legal system in which
there are no moral constraints on legal validity.°

Though all positivists agree there are possible legal

systems without moral constraints on legal validity, there are
conflicting views on whether there are possible legal systems
with such constraints. According to inclusive positivism (also
known as incorporationism and soft positivism), it is possible for
a society's rule of recognition to incorporate moral constraints
on the content of law. Prominent inclusive positivists include
Jules Coleman and Hart, who maintains that "the rule of
recognition may incorporate as criteria of legal validity conformity
with moral principles or substantive values ... such as the Sixteenth or

90 "Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia

of
Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March
2020

01 "Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia

of Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March 2020; citing
Hart 1994, pp. 181-82

2 "Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia

of
Philosophy, ISSN 2161-0002, https://www.lep.utm.edu/, 1 March
2020

46

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 Nineteenth Amendments to the United States Constitution
respecting the establishment of religion or abridgements of the right to
vote" 93

Although greatly reduced in influence with the advent of

positivism, natural law is still considered a necessary intellectual
opposition to totalitarian theories of modern governance
particularly in the aspect of human rights. Though most of our
notion of human rights have already been transcribed and
written down in various statutory enactments, including the
fundamental law, it seems that our universal concept of human
rights cannot fully be appreciated if the same are confined
within statutory pronouncements. One's humanity, after all,
cannot be summarized within an encapsulated statute.

Modem Theories

Legal Realism

The legal realist movement was inspired by John

Chipman Gray and Oliver Wendall Holmes and reached its apex
in the 1920s and 30s through the work of Karl Llewellyn, Jerome
Frank, and Felix Cohen. The realists eschewed the conceptual
approach of the positivists and naturalists in favor of an
empirical analysis that sought to show how practicing judges
really decide cases.94 The realists were deeply skeptical of the
ascendant notion that judicial legislation is a rarity. While not
entirely rejecting the idea that judges can be constrained by
rules, the realists maintained that judges create new law through
the exercise of lawmaking discretion considerably more often
than is commonly supposed. On their view, judicial decision is
guided far more frequently by political and moral intuitions

93"Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia of

Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March 2020; citing
Hart 1994, p. 250

94 "Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia

of
Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March 2020;
see
Leiter 1998

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 about the facts of the case (instead of by legal rules)
than theories like positivism and naturalism acknowledge.95

As an historical matter, legal realism arose in response to

legal formalism, a particular model of legal reasoning that
assimilates legal reasoning to syllogistic reasoning. According to
the formalist model, the legal outcome (that is, the holding)
logically follows from the legal rule (major premise) and a
statement of the relevant facts (minor premise). Realists believe
that formalism understates judicial lawmaking abilities insofar
as it represents legal outcomes as entailed syllogistically by
applicable rules and facts. For if legal outcomes are logically
implied by propositions that bind judges, it follows that judges
lack legal authority to reach conflicting outcomes. 96

From the modern realist school of jurisprudence, the end

or purpose of the law remains social in nature for it is found in
the society of the individual members that compose it. Justice
Holmes in his Path of the Law, said that the life of the law has
not been logic; it has been experience.7

It may not be amiss to recall to mind. however. the

language of Justice Laurel in the leading case of People vs.
Vera,9s to the effect that the basic individual right of equal
protection "is a restraint on all the three grand departments of our
government and on the subordinate instrumentalities and
subdivisions thereof, and on many constitutional powers, like the
police power, taxation and eminent domain." Nonetheless, no
jurist was more careful in avoiding the dire consequences to
what the legislative body

9s"Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia of

Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March 2020.

96"Naturalistic Epistemology," by Chase B. Wrenn, The Internet Encyclopedia of

Philosophy, ISSN 2161-0002, https://www.iep.utm.edu/, 1 March 2020.

97Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208 SCRA

617, May 08, 1992

98 65 Phil 56 (1937)

: 48

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might have deemed necessary to promote the ends of public
welfare if the equal protection guaranty were made to constitute
art insurmountable obstacle.

A similar sense of realism was invariably displayed by

Justice Frankfurter, as is quite evident from the various citations
from his pen found in the majority opinion. For him, it would be
a misreading of the equal protection clause to ignore actual
conditions and settled practices. Not for him the at times
academic and sterile approach to constitutional problems of this
sort. Thus: "It would be a narrow conception of jurisprudence
to
confine the notion of 'laws' to what is found written on the
statute books, and to disregard the gloss which life has written upon
it. Settled state practice cannot supplant constitutional guaranties,
but it can establish what is state law. The Equal Protection Clause
did not write an empty formalism into the Constitution.
Deeply embedded traditional ways of carrying out state policy,
such as those of which petitioner complains, are often tougher and
truer law than the dead words of the written text. "99 This too, from
the same distinguished
jurist: "The Constitution does not require things which are rent in
difef
fact or opinion to be treated in law as though they were the same." 1o0

Since under our Constitution, judicial review

exists precisely to test the validity of executive or legislative
acts in an appropriate legal proceeding, there is always the
possibility of their being declared inoperative and void.
Realism compels the acceptance of the thought that there could
be a time-lag between the initiation of such Presidential or
congressional exercise of power and the final declaration of
nullity. In the meanwhile, it would be productive of
confusion, perhaps at times even of chaos, if the parties
affected were left free to speculate as to its fate being one of
doom, thus leaving them free to disobey it in the meanwhile.
Since, however, the orderly processes of government, not to
mention common sense, requires that the presumption of
validity be accorded an act of Congress or an

99 Nashville, C. & St. L. Railway vs. Browning, 84 L ed 1254, 1258 [1940]

100 Gomez vs. Palomar, 25 SCRA 827 [1968]

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 order of the President; it would be less than fair, and it may be
productive of injustice, if no notice of its existence as a fact be
paid to it, even if thereafter, it is stricken down as contrary, in the
case of Presidential act, either to the Constitution or a controlling
statute. The far-reaching import in the above sense of the
decision we now render calls, to my mind, for an articulation of
further reflection on its varied implications. We have here an
illustration, to paraphrase Dean Pound, of the law being stable
and yet far from standing still. That is as it ought to be; that is
how law grows. It is in that sense that the judicial process is
impressed with creativity, admittedly within limits rather
narrowly confined. That in itself is to hold fast to the appropriate
role of the judiciary, far from insignificant as our decision
discloses. Hence, this separate concurring opinion, which, I
trust, will make manifest why my agreement with what Justice
Castro ad so ably expressed in the opinion of the Court is
wholehearted and entire.101

Nonetheless, a sense of realism compels the admission

that at times the line has been wavering or blurred. This is only
to recognize, as was pointed out by Justice Cardozo, that
juridical conceptions are seldom, if ever, carried to the limit of
their logic. For there are countervailing policy considerations.
Often, they have a stronger claim to judicial approbation.102

Its terms must be construed in the context of the realities

in the life of a nation it is intended to serve. Because experience
may teach one generation to doubt the validity and efficacy of
the concepts embodied in the existing Constitution and
persuade another generation to abandon them entirely, heed
should be paid to the wise counsel of some learned jurists that in
the resolution of constitutional questions like those posed
before Us - the blending of idealism and practical wisdom
or

101 Municipality of Malabang vs. Benito, 27 SCRA 533 [1969]

102 The Philippine American Management & Financing Co., Inc. vs. Management
& Supervisors Association of the Philippine-American Management & Financing
Co., Inc., 48 SCRA 187 [1972]

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progressive legal realism should be applied.Io To Justice
Frankfurter, law is a practical wisdom which legal thinkers
prefer to identify as progressive legal realism. The
national leader, who wields the powers of government, must
and has to innovate if he must govern effectively to serve
the supreme interests of the people. This is especially true in
times of great
crises where the need for a leader with vision,
imagination ¢ '
capacity tor decision and courageous action is greater.
to
preserve the unity of people, to promote their well-being. and
to insure the safety and stability of the Republic. Then.
too, it does not approach constitutional questions with
dogmatism or apodictic certainty nor view them from the
shining cliffs of perfection. This is not to say though that it is
satisfied with an empiricism untroubled by the search for jural
consistency and rational coherence. A balance has to be
struck, So juridical realism requires. Once allowance made
that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly
and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be
obeyed is easy to understand.

It would be to disregard the counsel of realism and to rely

on the conjectural if on the above facts he would be denied
exculpation. The test of rationality is not what a man should do
under normal circumstances and with time for cool reflection
present. It is rather how an individual in such dire situation,
with the grim prospect of the loss of life, would react, The law
wisely takes into consideration the well-nigh irresistible force of
the instinct of self-preservation. This Court, from the previously
4

cited case of United States vs. Patala promulgated in 1901, to

People vs. Boholst-Caballero, a 1974 decision, has been steadfast
and unwavering in its adherence to such a test of rationality.
There is no justification for a departure from such a norm.ut

103 See Alexander M. Bickel, the Supreme Count and the Idea of Progress,
1970
ed., pp. 19-21

1o+ Javellana vs. The Executive Secretary, 50 SCRA 30

[1973]

1s People vs. Artuz, 71 SCA 116, May 26, 1976

..

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 l
There is, however, wisdom, as well as , in these
realims
words of Justice Frankfurter: 'The equality at which the
'e2al prtection' clause aims is not a isrhiiei equality. The
Fourteen: Arcrimert sr.jirs 'tie equal protection of the laws,'
and laws are rp;
abstract prepositions. I7ey do mot rzlate to abstract units A,
Bari C
u if

are expressins . eft policy arsi ing out of • specifc i fcultias

"

•.
aiiressci t the attair.mert- of
"
szcifc
•
ends
"7
by tie use
"J
of specif: J

rediss. The Constitution des not reg.ire things which are different
ir. fact or cpimior. to be treats ir: law s though ihez were the saz."»

The Path of Law

Stare ieisis zt mom zit movere. d bv the decisions
Stna
and disturb not what is settled..7

In each volume of Scvreme

•
Court RPris Arntz:±i
(SCRA, Chief Justice Castro's preface cites the
governing
principle of precedents and sizre esisis rich: is
give.n
consistency and str:lit t the law" by which lawyers and
litigants
may know the law in concrete controverted cases, thus:.3>
Ir iis .fr.:us essz~ , ts : Lc, justice
Fz:: f.,
O , ; --r i\·t-7.·a:s-.i.1 Iulk",+f.i7•.·~t· %~4a~7 +..-c,l: %
l -
lad
.- · ,~
K
,.i,.a,_,..:::.,t-+:.+:,,t,.i,1
r·- :,/·· _,
~ K i
t7
tk" u %4 + ii + .:

co:rt tcl:!
is.

Te prei:cir: is hzei ;rein.ts. I gr.i:.g

principle, tcrich has <ixn: sistersan:; st:r:lit t te
"
Lr - •
is stare ecsi is et non guiet; rre (lit pas:
preen.ts ar..:
do rot disturb wit has bxn st:lei)

·Te ofif cials erring sizttr le r~ re.ti.s

the leers an litigants sir:g to kn:te the le in
acre

1.6 Sison, Jr. vs. Ancheta, 130 SCRA 654, July 25. 194 citni g3 Tigner vs. Texas
310US 141, 147 [1940]

.7 De la Cruz vs. Cou rt of Appea's, 305 SRA 303, March 25. 199°

1cs Luzon Brokerage Co., Inc. vs. Maritime Building Co.. Inc. 85 SA 35.
November 16, 1978
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 controverted cases, and the judges in adversary litigations,
should be well posted on precedents."

Such precedents and jurisprudence of this Court form

part of our legal system by force of the provision of Article 8
of the new Civil Code that "Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines" and may not be lightly treated.19

Two centuries of American case law will confirm

Prof. Consovoy's observation although stare decisis
developed its own life in the United States. Two strains of
stare decisis have been isolated by legal scholars. The first,
known as vertical stare decisis deals with the duty of lower
courts to apply the decisions of the higher courts to cases
involving the same facts. The second, known as horizontal
stare decisis requires that high courts must follow its own
precedents. Prof. Consovoy correctly observes that vertical
stare decisis has been viewed as an obligation, while
horizontal stare decisis, has been viewed as a policy, imposing
choice but not a command. Indeed, stare decisis is not one of the
precepts set in stone in our Constitution. 110

It is also instructive to distinguish the two kinds

of horizontal stare decisis - constitutional stare decisis and
statutory stare decisis. Constitutional stare decisis involves
judicial interpretations of the Constitution while statutory
stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to
apply stare decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the doctrine in
constitutional litigations still holds sway today. In soothing
prose, Brandeis stated: "Stare decisis is not ...a universal and
inexorable command. The rule of stare decisis is not inflexible.
Whether it shall be followed or departed from, is a question entirely
within the discretion of the court, which is again

Luzon Brokerage Co., Inc. vs. Maritime Building Co., Inc., 86 SCRA 305,
109

November 16, 1978

110 Lambino vs. Commission on Elections, 505 SCRA 160, October 25, 2006

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called upon to consider a question once decided." In the same vein,
the venerable Justice Frankfurter opined: "the ultimate touchstone
of constitutionality is the Constitution itself and not what we have
said about it." In contrast, the application of stare decisis on
judicial
interpretation of statutes is more inflexible. As Justice Stevens
explains: "after a statute has been construed, either by this Court
or by a consistent course of decision by other federal judges and
agencies, it acquires a meaning that should be as clear as if the
judicial gloss had been drafted by the Congress itself." This stance
reflects both respect for Congress' role and the need to preserve
the courts' limited resources.111

Reasons for Following and Refusing the Stare Decisis Rule.

• In general, courts follow the stare decisis rule for an
ensemble of reasons, viz.: (1) it legitimizes judicial institutions; (2)
it promotes
judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule
where (1) its application perpetuates illegitimate and
unconstitutional holdings; (2) it cannot accommodate changing
social and political understandings; (3) it leaves the power to
overturn bad constitutional law solely in the hands of Congress;
and, (4) activist judges can dictate the policy for future courts
while judges that respect stare decisis are stuck agreeing with
them.112

Finally An examination of decisions on stare decisis

in major countries will show that courts are agreed on the
factors that should be considered before overturning prior
rulings. These are workability, reliance, intervening
developments in the law and changes in fact. In addition,
courts put in the balance the following determinants: closeness
of the voting, age of the prior decision and its merits. The
leading case in deciding whether a court should follow
the stare decisis rule in
constitutional litigations is Planned Parenthood vs. Casey. It
established a 4-pronged test. The court should (1) determine

11 Lambino vs. Commission on Elections, 505 SCA 160, October 25,

2006

1.2Lambino vs. Commission on Elections, 505 SCRA 160, October 25,

2006

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whether the rule has proved to be intolerable simply in defying
practical workability; (2) consider whether the rule is subject to a
kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of
repudiation; (3) determine whether related principles of law
have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether
facts have so changed or come to be seen differently, as to have
robbed the old rule of significant application or justification.11

Bad Man Theory

According to USLegal -the Bad-man theory is a

jurisprudential doctrine or belief, according to which a bad
person's view of the law represents the best test of what exactly
the law is because that person shall carefully and precisely
calculate what the rules allow and operate up to the rules' limits.
This theory is also known as prediction theory. This theory was
first adopted by Oliver Wendell Holmes who mentioned that a
society's legal system is defined by predicting how the law
affects a person, as opposed to considering the ethics or morals
underlying the law. Under this theory, the prediction is done by
viewing the law in accordance with a bad man's point of view
who is not bothered about morals. Such a person is unconcerned
with acting morally. Instead, such a person would be concerned
about the degree of punishments certain acts will incur by the
public force of law.11

The first thing for a businesslike understanding of the

matter is to understand its limits, and therefore I think it
desirable at once to point out and dispel a confusion between
morality and law, which sometimes rises to the height of
conscious theory, and more often and indeed constantly is
making trouble in detail without reaching the point of
consciousness. You can see very plainly that a bad man has as

113Lambino vs. Commission on Elections, 505 SCRA 160, October 25,

2006
. .
114 https://definitions.uslegal.com/b/bad-man-theory/ Accessed 1 March
2020.

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much reason as a good one for wishing to avoid an encounter
with the public force, and therefore you can see the practical
importance of the distinction between morality and law. A man
who cares nothing for an ethical rule which is believed and
practised by his neighbors is likely nevertheless to care a good
deal to avoid being made to pay money, and will want to keep
out of jail if he can.115

I do not say that there is not a wider point of view from

which the distinction between law and morals becomes of
secondary or no importance, as all mathematical distinctions
vanish in presence of the infinite. But I do say that that
distinction is of the first importance for the object which we
are here to consider --a right study and mastery of the law
as a business with well understood limits, a body of dogma
enclosed within definite lines. I have just shown the practical
reason for saying so. If you want to know the law and nothing
else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to
predict, not as a good one, who finds his reasons for conduct,
whether inside the law or outside of it, in the vaguer
sanctions of conscience. The theoretical importance of the
distinction is no less, if you would reason on your subject
aright. The law is full of phraseology drawn from morals,
and by the mere force of language continually invites us to
pass from one domain to the other without perceiving it, as we
are sure to do unless we have the boundary constantly before
our minds. The law talks about rights, and duties, and malice,
and intent, and negligence, and so forth, and nothing is
easier, or, I may say, more common in legal reasoning, than to
take these words in their moral sense, at some state of the
argument, and so to drop into fallacy. For instance, when we
speak of the rights of man in a moral sense, we mean to mark
the limits of interference with individual freedom which we
think are prescribed by conscience, or by our ideal, however
reached. Yet it is certain that many laws have

115Oliver Wendell Holmes, Jr., "The Path of the Law", 10 Harvard Law
Review
457 (1897).

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been enforced in the past, and it is likely that some are enforced
now, which are condemned by the most en- lightened opinion of
the time, or which at all events pass the limit of interference, as
many consciences would draw it. Manifestly, therefore, nothing
but confusion of thought can result from assuming that the
rights of man in a moral sense are equally rights in the sense of
the Constitution and the law. No doubt simple and extreme
cases can be put of imaginable laws which the statute-making
power would not dare to enact, even in the absence of written
constitutional prohibitions, because the comm unity would rise
in rebellion and fight; and this gives some plausibility to the
proposition that the law, if not a part of morality, is limited by it.
But this limit of power is not coextensive with any system of
morals. For the most part it falls far within the lines of any such
system, and in some cases may extend beyond them, for reasons
drawn from the habits of a particular people at a particular time.
I once heard the late Professor Agassiz say that a German
population would rise if you added two cents to the price of a
glass of beer. A statute in such a case would be empty words, not
because it was wrong, but because it could not be enforced.
No one will deny that wrong statutes can be and are enforced,
and we would not all agree as to which were the wrong ones.16

Legal Interpretivism

Interpretivism is a thesis about what determines legal

rights and duties, i.e. what makes it the case that the law
requires what it does. As such, it is a thesis about the nature
of law. These questions can be formulated in terms of the
grounds of propositions of law.I7

16Oliver Wendell Holmes, Jr,, "The Path of the Law", 10 Harvard Law
Review
457 (1897)

17 Stavropoulos, Nicos, "Interpretivist Theories of Law", The

Stanford
Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL
=
<https://plato.stanford.edu/archives/fall2008/entries/law-interpretivist/>.
Accessed
1 March
2020

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 Interpretivism claims that values justify the precise kind
of authority that different agents and institutions have and
hence the precise way in which their decisions and other acts
determine legal duties (including any specific cases in which it
may turn out that that the values may dictate that the facts about
authoritative decision-making alone determine our duties).
Although the interpretivist accepts that propositions of law are
founded on political decisions, i.e. that the content of the law is
sensitive to what a political community historically decides; and
he also accepts that, more abstractly, law is dependent upon
certain political practices of a community, including legislation
and adjudication; he further says that what makes these
decisions and practices the grounds of propositions of law is the
normative fact that it is good that they should be such grounds.
The interpretivist says that it is in virtue of the fact that our
rights and duties ought to flow from past political decisions that
they flow from them; or that, more abstractly, legal duties
ought to be determined by social practices that they do. And he
thinks that they ought to be determined by such decisions and
practices because doing so serves certain political virtues such
as fairness and procedural justice. The interpretivist says that a
fuller articulation of these virtues and of their connections with
other political values would yield a more detailed account of
the precise way in which the practices determine legal duties.18

In our predisposition to discover the "original intent" of a

statute, courts become the unfeeling pillars of the status quo. Little do we
realize that statutes or even constitutions are bundles of compromises thrown
our way by their framers. Unless we exercise vigilance, the statute may
already be out of tune and irrelevant to our day.

Call it what it may but is there no conflict of legal policy

here? Dollar against Peso? Upholding the final and executory judgment of
the lower court against the Central Bank Circular protecting the foreign
depositor? Shielding or protecting the dollar deposit of a transient alien
depositor against

118 Stavropoulos, Nicos, "Interpretivist Theories of Law", The Stanford

Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL =
<https://pl ato .stanford. ed u/archives/fall2008/entries/law-interpretivistb>. Accessed
1 March 2020.

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injustice to a national and victim of a crime? This situation calls for
fairness against legal tyranny.

Salvacion vs. Central

Bank of the
Philippines19

Karen Salvacion, then 12 years old, was

kidnapped and raped ten times by an American Tourist
in The accused was arrested and detained however he
was able to escaped from jail. In civil case for damages
filed against the defendant American Tourist, the court,
upon plaintiffs' application and filing of a bond, issued a
writ of preliminary attachment. When the Sheriff served
a Notice of Garnishment on China Bank against the
foreign account of the accused-defendant, the bank
invoked Section 113 of Central Bank Circular No. 960
prohibiting any attachment, execution, and other court
processes against any foreign currency deposit. This view
was corroborated by the Central Bank, applying
philosophical theory on positivism (positivist
approach). The lower court ruled in favor of the
plaintiffs.

Can the court garnish the foreign account of

the accused-defendant?

The High Court held in the affirmative.

The Supreme Court, in so ruling the case, applied

the Interpretative Approach. The Court looks at the intent
of the law. The Supreme Court pronounced the following
words -"I fine, the application of the law depends on
the event of its justice. Eventually, if we rule that the
questioned Section 113 of Central Bank Circular No. 960
which exempts from attachment, garnishment, or any other
order or process of any court. Legislative body, government
agency or any administrative body whatsoever, is applicable
to a foreign transient, injustice would result especially
to a citizen aggrieved by a foreign guest like accused
Greg Bartelli. This would negate Article 10 of the New
Civil Code which provides that "in case of doubt in the
interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail".
Respondents were required to

119 278 SCRA 27, August 21, 1997 ..

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 comply with the writ of Execution and to release
to petitioners the dollar deposit of accused respondent.

If Karen's sad fate had happened to anybody's

own kin, it would be difficult for him to fathom how the
incentive for foreign currency deposit could be more
important than his child's rights to said award of
damages; in this case, the victim's claim for damages
from this alien who had the gall to wrong a child of
tender years of a country where he is a mere visitor. This
further illustrates the flaw in the questioned provisions.

But the realities of the present times show that the country
has recovered economically; and even if not, the questioned law
still denies those entitled to due process of law for being
unreasonable and oppressive. The intention of the questioned
law may be good when enacted. The law failed to anticipate the
iniquitous effects producing outright injustice and inequality
such as the case before us.120

It has thus been said that

"But I also know,\2 that laws and institutions must

go hand in hand with the progress of the human mind. As
that becomes more developed, more enlightened, as new
discoveries are made, new truths are disclosed and manners
and opinions change with the change of circumstances,
institutions must
advance also, and keep pace with the times ... We might as
well require a man to wear still the coat which fitted him when
a boy, as civilized society to remain ever under the regimen
of their barbarous ancestors."122

120 Salvacion vs. Central Bank of the Philippines, 278 SCA 27, August 21, 1997

121Salvacion vs. Central Bank of the Philippines, 278 SCA 27, August 21,
1997; citing Thomas Jefferson, Democracy, ed. Saul K. Padover. (New York,
Penguin, 1946) p. 171.

12 Salvacion vs. Central Bank of the Philippines, 278 SCA 27, August 21, 1997

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 Simply stated, when the statute is silent or
ambiguous, this is one of those fundamental solutions that
would respond to the vehement urge of conscience.123

"The article to be strictly construed. This article, in creating an

exceptional jurisdiction over civilians, is to be strictly construed and confined
to the classes specified. A civil offender who is not certainly within its
terms cannot be subjected under it to a military trial in time of war with
any more legality then he could be subjected to such a trial in time of peace.
As held by the Judge Advocate General, the mere fact of employment by the
Government within the theatre of war does not bring the person within the
application of the article. In several cases of public employees brought to
trial by court martial during the late war the convictions were disapproved
on the ground that it did
not appear that at the time of their offenses they were 'serving with the army'
in the sense of this article."124

People vs. Acierto125

The accused was a court martial reporter in the

Army of US in a regular salary basis but was later on
changed to piece work arrangement. It was during the
latter's time when the accused was said to have made
false claims where he was charged with Estafa and
Falsification of Documents. The accused plea guilty in the
crime of estafa but not guilty in the Falsification cases. The
general court martial ruled against him and sentence him
of imprisonment. The Commanding General as
reviewing authority disapproved the verdict upon the
sole ground that the accused was not subject to military
law and without prejudice to his trial before a proper
tribunal. When he was brought to Quezon City for
prosecution, the accused set up the plea of double
jeopardy linked with the plea of want of jurisdiction.

Was the defendant an employee of the United States

Army within the meaning of the United States Military
Law?

123 Padilla vs. Padilla, 74 Phil. 377

124 Referring to Article of War 2, paragraph 2[d]

12s 92 Phil., 534 , January 30, 1953

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 No. He could not be considered as serving the
Army.

In applying constructivist and interpretative

approach, The Court observed that the defendant worked
as he pleased and was not amenable to daily control and
disciplines of the Army. When his status was changed, he
ceased to be an integral part of the Army. As expressly
indicate in the Military Law and Precedents, "This
article
is to be strictly construed and confined to the classes
specified.
A civil offender who is not certainly within its terms cannot
be subjected under it to a military trial in time of war with
any more legality."

By the Agreement, it should be noted, the Philippine

Government merely consents that the United States exercise
jurisdiction in certain cases. The consent was given purely as a
matter of comity, courtesy, or expediency. The Philippine
Government has not abdicated its sovereignty over the bases as
part of the Philippine territory or divested itself completely of
jurisdiction over offenses committed therein. Under the terms of
the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The
Philippine Government retains not only jurisdictional rights not
granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to make use
of. The first proposition is implied from the fact of Philippine
sovereignty over the bases; the second from the express
provisions of the treaty. The treaty expressly stipulates that
offenses included therein may be tried by the proper Philippine
courts if for any special reason the United States waives its
jurisdiction over them.126

The carrying out of the provisions of the Bases Agreement

is the concern of the contracting parties alone. Whether,
therefore, a given case which by the treaty comes within the
United States jurisdiction should be transferred to the Philippine
authorities is to a matter about which the accused has nothing to
do or say. In other words, the rights granted to the United States

12s People vs. Acierto 92 Phil., 534 , January 30, 1953

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by the treaty insure solely to that country and can not be raised
by the offender.127

Pure Theory of Law

The idea of a Pure Theory of Law was propounded by the

formidable Austrian jurist and philosopher Hans Kelsen
(1881-1973). Kelsen began his long career as a legal theorist at
the beginning of the 20 century. The traditional legal
philosophies at the time, were, Kelsen claimed, hopelessly
contaminated with political ideology and moralizing on the one
hand, or with attempts to reduce the law to natural or social
sciences, on the other hand. He found both of these reductionist
endeavors seriously flawed. Instead, Kelsen suggested a 'pure'
theory of law which would avoid reductionism of any kind. The
jurisprudence Kelsen propounded "characterizes itself as a
'pure' theory of law because it aims at cognition focused on the law
alone" and this purity serves as its "basic methodological
principle."128
Note that this anti-reductionism is both methodological and
substantive. Kelsen firmly believed that if the law is to be
considered as a unique normative practice, methodological
reductionism should be avoided entirely. But this approach is
not only a matter of method. Reductionism should be avoided
because the law is a unique phenomenon, quite separate from
morality and nature.129

The neo-positivist Hans Kelsen30 proposed to seek only

the "real and possible" justice (empirical) and not the "ideal
and ethical" justice, which is to be found only in the
politically

127 People vs. Acierto 92 Phil., 534, January 30,

1953

128pT1,7

129 Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of
Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <https://
plato.stanford.edu/archlves/fall2008/entrles/lawphil-theoryf>. Accessed 1 March
2020.

130 Professor of Law in the University of

Vienna

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organized society. According to him, following the paths
of
Aristotle, is that empirical justice is social
contentment.13

Marmor further observes that the law, according to

Kelsen, is a system of norms. Norms are 'ought' statements,
prescribing certain modes of conduct. Unlike moral norms,
however, Kelsen maintained that legal norms are created by
acts of will. They are products of deliberate human action.
For instance, some people gather in a hall, speak, raise their
hands, count them, and promulgate a string of words. These are
actions and events taking place at a specific time and space. To
say that
what we have described here is the enactment of a law, is
to
interpret these actions and events by ascribing a normative
significance to them. Kelsen, however, firmly believed in Hume's
distinction between 'is' and 'ought', and in the impossibility of
deriving 'ought' conclusions from factual premises alone. Thus
Kelsen believed that the law, which is comprised of norms or
'ought' statements, cannot be reduced to those natural actions
and events which give rise to it. The gathering, speaking and
raising of hands, in itself, is not the law; legal norms are
essentially 'ought' statements, and as such, they cannot be
deduced from factual premises alone.132

From Nitafan's point of view, he notes that from the

functional or sociological school, with Montesquieu as its
expounder, the theory is that the law is a living thing and that its
development is interrelated with the social environment in
which its grows including the morality, manners, politics,
religion, and customs of the people.13 Joseph Kohler, Eugene

131 Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08, 1992; citing Kelsen. The Pure Theory of Law and
Analytical
Jurisprudence, 55 Harvard Law Review ((1941),
44.

132 Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of
Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <https://
plato.stanford.edu/archives/fall2008/entries/lawphil-theoryl>. Accessed 1
March
2020.

133 Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08, 1992; citing The Spirit of Laws, Bk. I, c. i.
(1718).
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Ehrlich and Roscoe Pound were the adherents of this school, and
they posit the theory law under the postulates of natural law is
inadequate in the adjustment and balancing of interests of
society which are "the facts of the living law".134 Interests of
society is the highest good, even when they are not recognized
by the government. Their objective is values common to all
the social interests. Adjustment of conflicting claims and
interests of individuals must initially be attempted at the
compromise table to minimize or prevention of further conflicts,
and that balanced or compromised interests are more likely to
remain in a state of social equilibrium, and thus more lasting
and enduring. If compromise is not possible, the conflict must be
submitted to the proper authority for decision, and a judgment
that promotes many social interests is preferable to that which
promotes only one.135

Recommended Individual
or
Group Reading and
Reporting

The following legal articles, cases, SCRA annotations, news

articles taken from various sources and internet sites may be
used as a contextual backdrop for use in individual or group
reports and discussions, whenever appropriate or applicable:

1. Gomez vs. Palomar, 25 SCRA 827 [1968];

2. Municipality of Malabang vs. Benito, 27

SCRA 533 [1969];

3. The Philippine American Management &

Financing vs. Management & Supervisors
Association of the Philippine-
American

134 Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08, 1992; citing Fundamental Principles of the Sociology of Law,
Moll
Translation, Russel & Russel, New York (1936), 85, 192, 197,
388.

135Nitafan, David. Annotation: Justice (A Philosophical Perspective), 208

SCRA
617, May 08,
1992
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 Management & Financing, 48 SCRA 187
[1972]

4. People vs. Artuz, 71 SCRA 116, May 26,

1976;

5. People vs. Ancheta, 64 SCRA 90, May 19,

1975; and

6. Republic of the Philippines vs.

Sandiganbayan, G.R. No. 104768, July 21,
2003.

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