Villanueva - Comparative Study of The Judicial Role (1990)
Villanueva - Comparative Study of The Judicial Role (1990)
Villanueva - Comparative Study of The Judicial Role (1990)
1Old.
1I DAVID. sllpra note 6, at 136 (underscoring supplied).
12VON MEJIREN, LAW IN THE UNITED STATES 15 (1988).
131d.
14Cj Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 44, 84 L.Ed. 604, 125 A.L.R.
1368 (1940).
15See DAVID, sllpra note 6, at 145.
16See Loussaouarn, The Relative Importance of Legislation. Custom, Doctrine. and
Precedent in French Law, 18 LA. L. REV. 235, 255- 260 (1958).
171d.
!8/d.
confirmed by a second decision of the same Court involving a similar
case.I9
191d.
2OSATACAN. THE SUPREME CoURT IN PHIuPPINE HISTORY 4 (1971).
21See MERRYMAN. THE CMLLAw TRADmON 38 (1985).
22SeeSaias v. Jarencio. 46 SCRA 734 (1970); Morfe v. Mutuc, 22 SCRA 424 (1968);
Peralta v. Commission on Elections. 82 SCRAJO (1978).
23Uy Cong Eng v. Trinidad, 47 Phil. 385 (1925).
The Spanish judicial system in the Philippines being as it were,
antiquated, corrupt, and venal24; the demand fora more enlightened and
efficient system of judicature was recognized by the Philippine
Commission.25 A new judicial system was installed patterned after the
American model of justice of the peace courts of .limited jurisdiction;
courts of first instance of general jurisdiction; and a Supreme Court at the
apex as the final arbiter of law and the Constitution. The Supreme Court
was organized by the appointment of a chief justice and six associate
justices, any five of whom constituted a quorum. The concurrence of at
least four members of the Court was necessary in order to pronounce a
judgment. Up until the commencement of the Commonwealth period, the
Court was composed of 4 American and 3 Filipino justices.26
35Id •• at 326-329.
36constitutionalism in the Philippines dates back to the ratification of the Treaty of
Paris of 1898 transferring Spanish sovereignty over the archipelago to the United States.
Prior to the 1935 Constitution. Philippine Constitutional Law grew from a series of organie
documents enacted by the United States government, namely: (I) President Mckinley's
Instructions to the Second Philippine Commission (public Laws of the Philippines XITI,
February 2. 1900); (2) the Philippine Bill of 1902 (public Laws of the Philippines XITI,
February 2. 1900. Act July I. 1902. ch. 1369. 32 Stat691); and (3) the Philippine Autonomy
Act of 1916.(11Public Laws of the Philippines 237. August 29. 1916,ch. 416,39 Stat. 545).
37FBRNANDO.THE PoWER OF JUDICIALREVIEW11-12(1969).
The institutionalization of the power of judicial review paved the
way for'the, metamorphic growth of th~Phi.lippine theory '-Onjudicial
precedents' in !he fH:~lcrof constitutional law:' Similar'to its' American
conception, constitutional law as understood in Philippine law,'isnot just
the text of the constitution itself, but the body of rules resulting from the
interpretation by a high court of ca~sii,n., ~hic~ tlW v~lidity, In r~latiDn t9
the constitutional instrument, of some acts of governmental power have
been challenged,38 "The, task of. the, student of cqnstituti,onal law,
therefore, cannot be, re<iuced to a mere ,e~~gesis oftre, constitu.tional te?<t,
[h]e must plow through the thousands of pages of courts' decisions 'In
ord'2T to find the mass of ''judge-~ad~' laws that hav,e grown from the
text."39
, "
The value of judicial precedents as a sourc:e of )C;l,W, followed an
uneven terrain since the establishment of the Supreme 'Court by the
American Military Government in 1900. The molding of the Philippine
judiciary in the image of the American judicial system; the maintenance of
a majority of American justices in the Supreme Court for the crucial 35
years until the establishment of the Commonwealth Governrpent; and the
appointment of many American jurists to courts of first instance,
especially the courts of the city of Manila and the assumption of the
judicial pO\yer of review, by the judiciary under the constitutional
framework, have allinexor~bly contributed to leaving a clear imprint on
the value of judicial deCisions as a source of law. The creative and
aggressive role, that ,the judiciary playediri constitutional law, where its
judgments became '''the law," is noteworthy. From the very' first volume of
the Philippine Reports, the Supreme Court, though not specifically
referring to the doctrine of stare deci$is,begC;lnto rely Ol\;earlier rulings to
resol ve pending cases.40 Such a development was further enhanced by the
rigorous transplanting of Anglo-American statutes in the Philippine legal
system.41
511d., at 225-247.
52Bryan v. American Bank, 7 Phil. 25~, at 257 (1906); J1.5. v, Pico, 178 Phil. 386, at
398 (1911);see also TOLENTINO,
CIVILCODEOFTHEPmupPiNES9 (1984) citing Cuyugan v.
Santos, supra note 48.
5340 Phil. 761 (1920).
characteristic coloring from the change of environm~nt."54 In People v.
Vera 55 the Supreme Court recognized that "to keep pace with new
developments of times and circumstances, fundamenwl principles should
be interpreted having in view existing 10Cli conditions and
environments. ~6
54/d •• at 77S.
556S Phil. S6 (1937).
56/d .• at 137.
57PARAS.CMLCODE OFTIlE PlnuPPINES 47 (1984); Gamboa, supra note 3, at 314.
5SChua v. Secretary of Labor, 68 Phil. 649 (1939).
59Acr OF UNITEDSTATESCONGRESSof Agust 29. 1916.
6079 Phil. 249 (1947).
run would be detrimental to· both countries of which such
persons might claim to be citizens.
The trend will continue long into the .future mainly be~ause the
Philippine legislature has taken the, stance of granting thejudici.ary broad
powers of "law-making" in various statutory enactments. In adopting the
remedy of reformation of instruments, Article 1360 provides that ''(t]he
principles of the general law on th,e reformation of instruments are hereby
adopted insofar as, they are not in conflict .with the provisions of this
Code." On trusts, Article 1442 provides that"[t]he principles of the general
law of trusts, insofar as they are not in conflict with this Code, the Code of
Commerce, the Rules of Court and special laws are hereby adopted. On
estoppel, Article 1432 provides that "[t]he principles of estoppel are
hereby adopted insofar as they are not in conflict with the provisions of
this Code, the Code of Commerce, the Rules of Court and special laws."
Article 32 grants an individual a cause of action against "[a1nypublic
61/d.
62U.S. v. Cuna, supra note 43.
63Alzua v. Johnson, supra note 34.
64Femandez, Sixty Years of Philippine Law, 35 PmL. L.J. 1397 (1960).
officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs" any of
the civil liberties guaranteed by the Bill of Rights of the Constitution.
Article 33, adopted from principles in Anglo-American jurisprudence,
provides that "[i]n case of defamation, fraud, and physical injuries, a civil
action for damages, entirely separate and distinct from the criminal
action, may be brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and shall require only
a preponderance of evidence." In addition, "general principles" are
codified in the Civil Code, giving judges greater judicial leeway, such as
the principle of "abuse of rights."65
Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and
good faith.
Art. 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnity the latter for the same.
Art. 21. Any person who willfully cause loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
66Malcolm, The College of Law University of the Philippines, 1 PlllL. L. 1. 4 (1914-
15).
67Benitez, The Private Law Schools, 2 PlllL. L. 1.315,317 (1916).
The underlying bias of the civil law system for coherence,
structure, and high-level generalization68 was a tantalizing feature that,
on the part of the Filipino civil-law trained lawyers, was difficult to give-
up in light of the almost haphazard growth of common law doctrines
through case-law. The deeply-rooted and historically-conditioned
attitudes about the nature of civil law persisted even as the Philippine
legal system began to adopt many Anglo-American laws and doctrines.
This method of exegesis still has its strong influence in the system, as the
Filipino jurists continue to believe that the starting point for legal
reasoning should normally take the form of legislation. But similar to the
dev010pment in continental Europe, legislative enactments, whether in the
form of codes or special legislations, were recognized to be insufficient in
cov~ring all possible situations.
l02ToLENTINO ,supra note 52, at 38. See also PARAS,supra note 57, at 44; PASCUAL,
supra note I, at 22; Gamboa, supra note 3, at 314; and Juco, supra note 92, at 45.
l03PASCUAL,supra note I, at 22.
l04ToLENTINo, supra note 52, at 38.
This stance follows ,the' concept of "free scientific research"
advocated by Francois Geny in France.lOS
U17However. Article 9 does not require a courlto decide each and every question of
law raised by one party regardless of its materiality to the litigation. Novino v. Court of
Appeals. 8 SCRA 279. 280 (1963).
108cML CoDE.
Art. 11. Customs which are contrary to law. public order or public policy shall
not be countenanced.
ArL 12. A custom must be proved as a fact. according to the rules of evidence.
1f1lld.
llOOilmore. supra note 1. at 90.
11177 Phil. 1066 (1947).
be raised as a doctrine if after it has been subjected to test in
the crucible of analysis and revision, this Supreme Court
should fmd that it has merits and qualities sufficient for its
consecration as atule of jurisprudence. 112 ,
Miranda does not disclose the legal or historical basis for the
doctrine. What is readily apparent from' the hierarchical application of
Miranda, however, is that it adheres to the structural pattern of the doctrina
legal of Spain, where only the Supreme Court establishes binding
precedents.1l3 However, unlike the concept of doctrina legal, the Miranda
application grants to the decisions of the Court of Appeals persuasive
juridical effect, much like that of jurisprudence constante.
U&Cf.Juco. supra note 78. at 50-51 citing dissent in People v. Santos. 104Phil. 551.
560 (1958).
11934 SeRA 98 (1970).
120ld••at 107(underscoring supplied).
121PUNo,INNovA1l0NS AND REFORMS IN TUE JUDIOAL SYSTEM (1978).
Under the Revised Rules of Court, a review by the S~upreme Court
of decisions of the Court of Appeals "is not a matter of right, but of soHnd
judicial discretion, and will be granted only when there are special and
important reasons .therefore."122 The grounds giv.enfor,review; by the
Supreme Court are:
. (b) When the 'Court of Appeals has so far departed ffom the
accepted and usUal Cqurse of judicial proceedings, or so far
sanctioned such departure by a lower court. as to call for an
exercise of the power of supervision. 123
124Under Article VIII, Section 4 (1) of the 1981 CONsmunoN, the Supreme Court
composed of a Chief Justice and 14 Associate Justices may sit en bane or, in its discretion,
in divisions ofthrec, five or seven membeR.
125CoNST., art. VllI, sec. 4 (3).
I26Barrera v. Barrera, 34 SCRA 98,106 (1970).
127/d. See also People v. Santos, 104 Phil. 551, 560 (1958).
12SCONST.,art. VIII, sec. 11.
129People v. Valenzuela, 135 SCRA 112 (1985); Cathay Pacific Airways v. Romillo,
Jr., 142 SCRA 262 (1986).
The Philippine doctrine on judicial precedents has certainly been
much influenced by the second principle of stare decisis that "a court is
bound by its own previous decisions", 130 but more in accord with the
American tendency to departfrom precedent when warranted by policy
considerations. The Supreme Court has decreed
But in criminal cases the attitude of the Supreme Court has been
more solicitous towards the defendant. The doctrine laid down by the
Supreme Court in criminal laws is deemed to constitute a part of the law
as of the date it was originally passed, but a reversal of that doctrine is
also considered a part of the interpreted law on the date the law was
passed.138 Thus, theoretically, a particular law can have as many
interpretation as the Supreme Court should change its interpretation.
133M., at 700-702.
134PARAS,supra note 57, at 47.
13SLoussaouarn, supra note 16, at 239.
136Senarillos v. Hermosisima, 100 Phil. 501, 504 (1956).
137E.g" dissent in Philippine Trust Co. v. Mitchell, 59 Phil. 30, 41 (1933).
138See People v.labinal, supra note 101.
To illustrate, in 1958 in People v. Lucero139 the Supreme Court held
that a civilian who has been appointed agent by a provincial governor
with written authority to carry firearm. would not violate the law
governing illegal possession of firearms. The doctrine was reaffirmed in
1959 in People v. Macarandang.l40 In 1967, however, in People v. Mapa,141
the Supreme Court abandoned the doctrine and affirmed the conviction of
defendant Mapa. In 1974, the Supreme Court in People v. Jabinal,142
acquitted the defendant (although he was in the same position as Mapa
carrying a firearm pursuant to his appointment as special agent by the
provincial governor), on the ground that when he was appointed agent in
1962, the prevailing doctrine on the matter was that laid down in
Macarandang (959) and Lucero (1958) and the reversal of the doctrine
carne only in 1967 in Mapa. Because the Macarandang doctrine was part of
the law of the land when Jabinal was arrested in 1962, he should benefit
from such doctrine. The Mapa doctrine can only be given prospective
effect and "should not apply to parties who relied on the old doctrine and
acted on the faith thereof."143 The reliance doctrine was also applied in
People v. Licera.I44 There is no doubt that the "reliance" doctrine of the
Supreme Court is just and equitable, but it was applied uneven-handedly.
Mapa became the scapegoat since at the time of his apprehension the
prevailing doctrine was also the Macarandang doctrine and he relied on it
just as in the case of defendants Jabinal and Licera.
147ld., at 1106; See also Manila Co. v. Flores, 99 Phil. 738 (1956); de Agbayani v.
Philippine National Bank, 36 SCRA 429 (1971).
148E.g., Ordovesa v. Raymundo, 63 Phil. 275.
149Peoplev. Pinuila, 103 Phil. 992 (1958); Pomeroy v. Director of Prisons, 107 Phil.
50 (1960)
150Senarillos v. Hermosisima, supra note 137 at 504 (1956); see also, TOLENTINO,
supra note 52, at 38-39.
151People v. Olarte, 19 SCRA 494, 499 (1967).
152Zaratev. Director of Lands, 39 Phil. 747 (1919).
153Peoplev. Olarte, supra note 152.
of occasional errors, judgments of courts should become final at some
definite date fixed by the law. The very object for which courts were
constituted was to put an end to controversies."lS4
158E.g., SCRA INDEX, Philippine Reports Digest, Republic Reports Digest. Annual
"Surveys" of Supreme Court decisions in important fields are published yearly by various
legal and law school publications.
159Cf. GLENDON, GORDON & OSAKWE, COMPARATIVE LEGAL TRADmONS 126-128
(1982).
160Id., at 139-140.
The present ambivalent theoretical precepts i!, Philippine legal
system of ;the power of the judiciary in "lawmaking" has l~d to an
irregular terrain that can only be explained by the legal predilections of
individual judges who mayor may not choose to wield the power, and
leading commentators, mostly civilists, whose drawback to some of the
archaic principles of civil law does n()t take into consideration the trend in
leading civil law countries such. as Spain, France and Germany to adopt
radical principles as to the proper role of judicial precedents as formal
sources of l~w. The lack of a c1ear-<ut legal philosophy on this matter
breeds. inconsistent results and leads to the danger pointed out by Rene
David that without the guidance of a clear underlying legal philosophy,
what becomes the essential factor is the willingness, or hesitation, of each
judge to admit that distinctions. mayor may not be drawn, or whether he
considers himself bound by an archaic principle, or whether he is even
aware of the need that the law should evolve and whether he is to be
guided by progressive or conservative ideas)61
There should be
a reddinition of the principle of "separation of
power", at least insofar as lawmaking power is concerned.- to one that
emphasizes more the "separation of primary responsibility" rather than
the exercise of such power,162 At the very least such a doctrine should
dispense with the notion that courts and administrative agencies never
put anything into the law which was not there at the time they used it and
that all they do is apply the received rule,163 Filipinos do not have French
The weak link in the Philippine judicial system is the middle part
of the achain involving the Court of Appeals and other high courts,
including the administrative agencies, since there is no reliable reporter
system covering their decisions. A development of· a strong reporter
system in this field will encourage a system of jurisprudence constante on
that level of the judicial system. This is necessary, for often the Supreme
Court cannot find the time to address all issues important in the lives of
peOple, especially when it can only act on the basis of justiciable
controversies. Transactions and lives cannot pause to await the slow grind
of the Supreme Court decisional process, evolving a reliable system of
precedents in the upper middle level of the judicial echelon would
facilitate commercial, ecO'nomic and spcial developments. "•