Utopia 2013 Introduction to Law Primer

THE FRATERNAL ORDER OF UTOPIA 

Introduction to Law Primer 2013 Edition

THE FRATERNAL ORDER OF UTOPIA 

The Utopia Academics Team would like to thank Senior Brod Daniel Darvin for the guidance and motivation without which this primer would not have materialized. We consider his works as cornerstones for this reviewer now in your hands.

Do not rely solely on the recitation-ready digests of this reviewer. This type of digest merely aims to give an overview and background of the cases for easy understanding and reference during recitation. This digest is not comprehensive. It is advised to read the full text of the cases and the comprehensive digests in case the professor asks additional questions

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Issues which pertain to the method or manner of carrying out a legal dispute. The (1) facts, (2) issues, and (3) held/ratio Whether or not the case is ripe for adjudication. Facts are events or circumstances that transpired. They are usually narrated at the beginning of the case. There is usually more than one issue. It is the matter in dispute in the case. It is usually in question form and begins with the phrase “whether or not.”

No. Read only the issue relevant to the subject matter.

The prosecution argues that the accused is liable for murder  while the defense contends that the accused is only liable for homicide. The issue is whether or not the accused is liable for murder or homicide.

(1) Substantive issues and (2) Procedural issues

Issues which pertain to the rights of the parties.

If the subject is Constitutional Law, study only the first issue since it deals with the Bill of Rights. If the subject is Criminal law, study only the second issue. And if the subject is Civil Law, study only the third issue.

Whether or not the accused is liable for murder or homicide. 1

THE FRATERNAL ORDER OF UTOPIA  professor an impression that you came unprepared for class. In subjects such as introduction to law, where the subject matter is general and unknown, it is advised to focus on the substantive issues.

The court’s decision on a particular issue. It includes the legal basis of the decision, analysis of facts, and conclusion of the case.

1) Hold your ground and be polite. Remember, each recitation is a test not only of your knowledge, but of your composure and how well you keep your cool despite the stress. Never attempt to make jokes while reciting. There is always a chance that the professor might take this as a form of disrespect. Law school has a serious atmosphere. 2) Nothing beats preparation. So make sure you read all the cases and can provide a summary of the readings from the top of your head. Try to dramatize the facts in your head to easily recall the flow. 3) When you are inevitably called, observe good posture and be confident. Do not “dance” around your spot. Make an impression on the professor, and build on the fact that you have prepared beforehand. Look at the professor straight in the eye. Failure to observe this might give the

4) It is best to frame your answers this way: a) Be responsive first, meaning answer yes or no, or true or false, etc., when it is called for. b) Then provide the source for your answer —   whether it’s a law or a case. Discuss the case or the law briefly, then apply to the situation at hand. c) Provide a short conclusion.

Morality will exercise some significant influence over the  way rules are to be understood.

The law consists of the 1) explicitly adopted rules plus 2) the best moral principles that can be understood to lie behind those rules. These principles serve as a legitimate basis of  legal decisions, as well as help guide the interpretation of  legal rules in hard cases in which the right legal answer is unclear.

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Fit as a matter of logical consistency and Fit as a matter of  helping one justify or provide a rational for the rules.

The Supreme Court decided that because wiretapping was not an act of physical intrusion and confiscation, the fourth amendment rule did not apply to it.

 Any viable candidate for an underlying principle must be logically consistent with most of the rules. Total consistency is not required, only a high degree.

He would look at the moral principle that fits the Fourth  Amendment rule against unreasonable searches and seizures.

The fourth amendment states, “the right of the people to be  secure in their persons, houses, papers, and effects, against  unreasonable searches and seizures,”  so, no, the government cannot search it without a warrant or probable cause.

 Yes, because according to Dworkin, privacy has two aspects: 1) physical space and 2) informational aspect. The Olmstead case ignores the informational aspect.

Then one must decide which of them can be a legitimate basis for legal decision making.

 Yes, modern technology should be considered while interpreting laws. Dworkin’s solution is to look to morality. The law consists of  the rules explicitly adopted by the political community plus the best principles that fit those rules.

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People will, of course, disagree over what is morally best, but each person decides for him or herself what is morally best. According to Dworkin, a judge who will make a goodfaith effort to determine what is morally best is fully authorized to make her legal decisions.

These are the questions about moral obligations which have no right answer because there is nothing objective in the  world that can make a statement about our moral obligations true or false.

Dworkin claims that external skepticism rests on the false premise that moral judgment must correspond to perceivable facts in order for us to reasonably assert that some such judgments are right and others are wrong. However, he fails to come to grip with the fact that there are many different, conflicting ways of conducting moral arguments.

This theory views our legal system as fundamentally unjust and oppressive. It states that the system promotes the interests of the wealthy and privileged at the expense of the rest of society. It holds that there is no consistent set of  moral principles that underlies our laws.

His theory posits an important and necessary connection between law and morality, but avoids the problems afflicting the approaches of Aquinas and Fuller.

Unlike Aquinas’ theory, Dworkin’s theory does not hold that unjust rules are invalid laws.

Unlike Fuller’s theory, it does not hold that the principles of  legality are by themselves sufficient to create a prima facie moral obligation to obey the rules of any system of positive law.

No, because judges should refer to widely accepted  judgments in society as well.

This theory rejects the natural law idea that genuine law is necessarily just law and also rejects the links between positive law and morality posited by Fuller and Dworkin. 4

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Rules are a species of command. Laws are rules laid down by superiors to guide the actions of those under them.

Positive morality is a set of moral values and rules informally accepted by a given society. (no punishment/enforced by general opinion)

It consists of general commands laid down and enforced by the sovereign.

In his view, the sovereign is defined solely in terms of  power, not in terms of justice or any other moral concept. The power that makes some person or group of persons sovereign has no moral qualifications whatsoever attached to it.

1.) It is “What is the law?”  vs. “What ought to be the law.”  and 2.) There is no necessary connection between legal and moral obligation.

No, in fact, Austin believes that positive morality is an important source of positive law: the general commands of  the sovereign often reflect the rules of positive morality.

No, the two must never be confused.

 Austin rejects the idea that international law is a properly understood law because there is an absence of a global sovereign to issue and enforce commands

It is to obey the dictates of the sovereign, notwithstanding international or natural law.

 Austin’s approach presents a clear alternative to the natural law approach.

and

systematic

1.) He avoids the question, “Is a rule enforced as a law by the courts a valid law if it is contrary to natural law or 5

THE FRATERNAL ORDER OF UTOPIA  morality?” and 2.) Austin’s argument that traditional natural law theory invites anarchy is questionable.

Some say that Austin’s account of law in terms of the general commands of the sovereign is fundamentally mistaken.

Certain types of legal rules cannot be adequately understood as commands. Thus, some legal rules do not prohibit or require but rather empower individuals to do things that would otherwise be impossible for them to do. (not all laws are prohibitions or mandatory rules).

Legal rules that empower individuals, e.g. contract law empowering individuals to enter legally binding agreements.

 A command seeks to alter the world by getting someone to do something. A power-conferring rule seeks to alter it by empowering persons to do things that they would otherwise be unable to do.

Hart argues that this analysis makes it impossible to correctly distinguish a government from a gunman. The gunman’s threat “Your money or your life” forces an individual to obey with the use of undesirable consequences should he fail to comply. Hart points out that being obliged to do something is not the same as being obligated to do it.

Governments can create obligations by enacting laws. gunmen, through threats and orders, cannot create any obligation – moral, legal, or any other kind.

Not all societies have legal systems. In order to have a legal system, a society must have certain special kinds of rules over and above the rules that impose obligations.

These are rules which impose obligations.

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THE FRATERNAL ORDER OF UTOPIA  ? (A rule that singles out the rules that actually do impose obligations in that society-Basically a rule for recognizing which rules are valid); ; and

International law lacks secondary rules of change and adjudication which provide for legislature and courts. Rule of recognition is also not present. Such provides for general criteria for identification of rules, giving its binding force.

.

 A legal system is a system that brings together both primary and secondary rules.

Hart can argue that his government of laws is unlike a gunman in that its exercise of power is regulated and controlled by secondary rules, while Austin says that the source of positive law is a sovereign power standing above and all rules of positive laws

In international law, law is considered as a matter of orders backed by threats. This contrasts the character of rules between international and municipal law.  Also, international law believes that states are fundamentally incapable of being subjects of legal obligation. This contrasts the character of subjects

1) Validity (2) Imposes an obligation or duty

The rules for states in international law resemble a simple form of social structure, consisting only of   – rules of prime necessity in a society

 An external predictive statement connotes suffering for disobedience while an internal normative statement connotes a pure obligation to act

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THE FRATERNAL ORDER OF UTOPIA  In municipal law, physical sanctions are both necessary and possible. It is also believed that there are no natural deterrents in breaking the law In international law, violence between states must be public. In this regard, organized sanctions involve risks, as there is no assurance that the side of international order could prevail over state powers tempted to aggression. No simple deduction can thus be made upon the necessity of  organized sanctions in international law for it to impose obligations, and therefore, binding.

There is difficulty in accepting or explaining that a state could at once be both sovereign and also a legal subject. In most cases, the dependence of one unit, such as that of a colony, on another (sovereign state) is expressed in legal forms. In some cases, the legal system of the dependent unit may not reflect its dependence (e.g. puppet governments, internally autonomous states)

their natural state, were bound by law, by treating the obligation to obey as that of a contract.

First, it is contended that voluntarist theories fail to explain how it is known that states can only be bound by selfimposed obligations. Second, for a state to impose obligations on itself by promise, agreement, or treaty, rules must already exist to bind the state to undertake that promise. Such rules bind independently of the choice of the bound party, thus it is inconsistent with the supposition that their sovereignty demands freedom from such rules. Third, factual bases are incompatible with voluntaries theories since they still require the consent of the state to self-impose. For example, new states are bound by general obligations of international law, including those that give binding force to treaties, right when they emerge into existence. Also, a state undergoing changes or acquiring territory is subject to rules it formerly had no opportunity to observe or break, or to give or withhold consent.

We can only know which states are sovereign, and its extent, when we know what the rules are and what they allow.

The voluntarist/auto-limitation theory treats all international obligations as self-imposed, like the obligation which arises from a promise. It is similar to social contract theories which sought to explain how free and independent individuals, in

Not necessarily. There are several reasons why international law is not classified as morality. Some of which are as follows: 

 Appraisal of states’ conduct in terms of morality is different from the formulation of claims, demands, 8

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

 



and the acknowledgment of rights and obligations under rules of international law Claims under international law are not couched in terms that appeal to conscience, though like in municipal law, may be joined with a moral appeal Rules of international law are morally indifferent The very idea of change by human legislative fiat is repugnant to the idea of morality, as we conceive it as the ultimate standard Moral obligation in the course of conduct in international law is neither apparent nor necessary.

International law resembles in form, but not in content, a simple regime of primary and customary law. Municipal law does not recognize the validity of agreements extorted by violence while International law does not. In international tribunals, no state can be brought before it  without its consent, unlike municipal courts.

No

In such a system, a rule will be valid if it conforms to the requirements of the rule of recognition. International law is in a stage of transition towards acceptance of a rule of recognition, which would bring it nearer in structure to a municipal system.

What analogies can be made between international and municipal law?  Analogies of function and content can be made but not of  form. Analogies of function reflect on ways on how international law differs from morality. Analogies of content are in the range of principles, concepts, and methods common to both municipal and international law.

 According to Kelsen and other modern theorists, international, like municipal law, possess a rule of  recognition, and the other rules constitute a single system. On the other hand, an opposed view states that international law consists of sets of separate primary rules of obligation, and of which the rule giving binding force to treaties is such.

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THE FRATERNAL ORDER OF UTOPIA  not exceeding in sixty days, in accordance with Section 2759 of the Revised Administrative Code.  A petition for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro was filed. It was alleged that the Manguianes were being illegally deprived of their liberty by the provincial officials.

Section 2145 of the Administrative Code of 1917 provided: SEC. 2145. Establishment of non-Christian upon sites  selected by provincial governor .  —  With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Pursuant to the above law, the provincial board of Mindoro adopted Resolution No. 25 allocating 800 hectares of public land in the sitio of Tigbao on Naujan Lake as a site for the permanent settlement of Mangyanes in Mindoro. Moreover, the provincial governor issued Executive Order No. 2 directing all the Mangyans in the towns of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Calapan, to take up their habitation on the site of Tigbao, Naujan Lake. The Order stated further that any Mangyan who shall refuse to comply shall upon conviction be imprisoned for a period

Whether or not the petition should be granted; a) W/N (whether or not) Section 2145 of the Administrative Code of 1919 was unconstitutional on the ground of invalid delegation of legislative power. b) W/N Section 2145 of the Administrative Code of 1919 was unconstitutional on the ground of religious discrimination. c) W/N Section 2145 of the Administrative Code of 1919 was unconstitutional on the ground that it denied liberty without due process of law and violated equal protection. d) W/N Section 2145 of the Administrative Code of 1919 was unconstitutional on the ground that it constituted slavery and involuntary servitude. e) W/N Section 2145 of th e Administrative Code of 1919 was a valid exercise of police power.

a) Section 2145 of the Administrative Code of 1919 was a  valid delegation oflegislative power by the Legislature. The Legislature merely conferred, uponthe provincial governor  with the approval of the provincial board and the 12

THE FRATERNAL ORDER OF UTOPIA  department head, discretionary authority as to its execution, to be exercised under and in pursuance of the law.

promote their educational, agricultural, industrial, and economic development and advancement in civilization.

b) Since the term "non-Christian" was construed to refer to the natives with a low grade of civilization, Section 2145 of  the Administrative Code of 1919 does not discriminate between individuals on account of religious differences.

Petitioners are not unlawfully imprisoned or restrained of  their liberty. Habeas corpus cannot issue.

c) Section 2145 of the Administrative Code of 1919 did not unduly interfere with the liberty of the petitioners. Considering the degree of civilization of the Manguianes, the restraint was for their own good and the general good the Philippines. Neither did the law violate due process and equal protection since (a) the law was reasonable, (b) it was enforced according to the regular methods of procedure and (c) it applied to equally to all in the same class. d) Confinement in reservations in accordance with the said law did not constitute slavery and involuntary servitude. The purpose of the Government was evident. The Mangyans, led a nomadic life and made depredations on their more fortunate neighbors, were uneducated in the  ways of civilization, and did nothing for the advancement of  the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals. The process of civilizing the Mangyans required that they be gathered together. “Segregation” really constituted “protection” for the Mangyans. e) It was a valid exercise of police power. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. The fundamental objective of the law was to establish friendly relations with the so-called non-Christians, and to

Under current socio-cultural norms, would the case be decided in the same way?

The complete phrase is "Delegata potestas non potest delagari" which means that, "no delagated power cannot be further delegated."

It is the power to make laws.

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THE FRATERNAL ORDER OF UTOPIA   As a general rule, legislative power is vested in the Congress and cannot be delegated. The Rubi case admits an exception to this rule. The power can be delegated to local government units.

undue delegation. However, discretion as to how to execute it is allowed.1

Statues.

Ordinances.

Laws are more authoritative than ordinances. The rule is that for an ordinance to be valid, it should not contravene with a statue or the Constitution.

Rubi and other Manguianes were detained in a reservation for non-Christian tribes in Mindoro as ordered by the governor and the provincial board in accordance with the  Administrative Code (authorizing them to do so when necessitated by law and order). Said Code is allegedly an undue delegation upon the governor and the provincial board. The court found the allegation untenable. The rule of  potestas delagata is not absolute. However, delegation of  legislative powers to LGUs is sanctioned by immemorial practice (as in this case). Local officials are in the best position to know when what actions are in the interest of law and order. Discretion as to what the law shall be constitutes

On January 2, 1942 Japanese Forces occupied the city of  Manila. On the next day, the Commander in Chief of the  Japanese forces declared that so far as the military administration permits all the laws established in the Commonwealth as well, executive and judicial institutions shall continue to be effective as in the past. All public officials shall also remain in their posts. On January 23, 1942 a civil government under the name Philippine Executive Commission was organized by the  Japanese with Jorge B. Vargas as Chairman. On October 14, 1943 the so-called Republic of the Philippines was inaugurated by the Japanese but no substantial change was effected in the organization and  jurisdiction of the different courts and in the laws they administered and enforced. On October 23, 1944, a few days after he landed in Leyte (Philippines not yet liberated), General Douglas Macarthur issued a proclamation to the People of the Philippines: 1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over 1

Daniel Darvin, Darvin’s Digest of Political Law  Cases. 14

THE FRATERNAL ORDER OF UTOPIA  the people in areas of the Philippines free of enemy occupation and control; 2. That the laws now existing on the statute books of  the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal  effect  in areas of the Philippines free of enemy occupation and control. On February 3, 1945 the city of Manila was partially liberated. General Douglas MacArthur restored the full powers and responsibilities under the Constitution to the Commonwealth. In the light of these facts, Respondent Judge Dizon refused to recognize and continue the civil case filed by the petitioner during the Japanese occupation stating that the 1944 declaration of Gen. MacArthur had the effect of  nullifying and invalidating all the proceedings and  judgments of the court of the Philippines under the Japanese Military Occupation. Thus the petition for mandamus (to compel) Judge Dizon to continue the civil case (no.3012) that was filed by the petitioner during the regime of the so -called Republic of the Philippines.

a) W/N the judicial acts and proceedings of the court under the Philippine Executive Commission and Republic of the Philippines (both under Japanese control) remained good and valid even after the liberation of the Philippines. b) W/N proclamation no.3 on 1944 by Gen. MacArthur (see above) has invalidated all judicial acts and proceedings of  the said courts. c) If the said acts and proceedings were not invalidated by the proclamation (see no. 2 issue), may the present Commonwealth (after liberation) courts continue those proceedings?

a) Yes, because the Philippine Executive Commission and theRepublic of the Philippines as established by the  Japanese are considered as de facto  governments. It is a legal truism in political and international law that all acts and proceedings of the judicial, executive and legislative department of a de facto government are good and valid. The 3 Types of De Facto Government: 1. That government that gets possession and control of, or usurps, byforce or by the voice of the majority, the rightful legal governments and maintains itself  against the will of the latter 2. That which is established and maintained by military forces who invade and occupy a territory of  the enemy in the course of war, and which is denominated a government of paramount force 15

THE FRATERNAL ORDER OF UTOPIA  3. That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such. Distinguishing characteristics of the :2 1. That its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and 2. That while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not  warranted by the laws of the rightful government. Powers and duties of the second type of  de facto  government are regulated in Section III of The Hague Conventions of 1907: Belligerent occupant has the right and duty to insure public duty and public safety during military occupation. He may suspend the old laws and promulgate new ones He is enjoined to respect (unless absolutely prevented by the circumstance) the (laws which enforce public order and regulate social and commercial life) 2

Thorington v. Smith.

On the other hand, or those of political nature (e.g. right to travel, right to bear arms, right of  assembly, freedom of the press) are considered as suspended.  Although local and civil administration of justice are suspended as a country is militarily occupied, in actual practice local tribunals and judges are authorized to continue administering justice. Doctrine in Baldy v. Hunter on the de facto government established by the Confederate States that were in a state of war with the United States —“Judicial and legislative acts in the respective states composing the so — called Confederate states should be respected by the courts if  they were not hostile in their purpose and mode of enforcement to the authority of the National Government, and did not impair the rights of the citizens under the Constitution.” The Philippine Executive Commission and the Republic of the Philippines are both de facto governments of the second type because the source of  their authority is the Japanese authority and Government. They were a government established by the belligerent occupant. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de  facto governments, it necessarily follows that the  judicial acts and proceedings of the courts of justice of  those governments, which are not of a political complexion, were good and valid, and, by virtue of  the well-known principle of postliminy (postliminium) in international law, remained good and valid after the 16

THE FRATERNAL ORDER OF UTOPIA  liberation or reoccupation of the Philippines by the  American and Filipino forces under the leadership of  General Douglas MacArthur. b) No, the phrase, “processes of any other government” could not be construed to include judicial processes because it would violate international laws as discussed above and it will result to great inconvenience and public hardship and great public interest would be sacrificed if   ALL processes were invalidated. The proclamation of  General MacArthur has not invalidated the judicial acts and proceedings that are not of political complexion. Commonwealth Executive Order No.37, which was issued after the restoration of the Commonwealth Government, states that (1) that the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished,” and “(2) that all cases which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. EO No.37 thus recognizes that the Court of   Appeals that was abolished is the same Court of Appeals before the Japanese occupation and during the Japanese Occupation. All cases pending in the CA are then to be forwarded to the Supreme Court regardless of whether they  were initiated prior to or during the Japanese occupation. c) Yes, the courts have the jurisdiction to continue the proceedings. 1. Theoretically, Japan has the authority to change the preexisting executive, legislative and judicial forms of  government of the occupied country. In actual practice, the substitution or change is often restrained by the laws of nations and in order to unnecessarily disrupt the ordinary pursuits and business of society.

2. The courts during the Philippine Executive Commission and the so-called Republic of the Philippines are the same courts after the liberation. Thus, they have been in continued existence  and by  virtue of the principle of postliminy may continue the proceedings in cases pending on the same courts. 3. Commonwealth Executive Order No.37 (See Issue No.2)

In view of all the foregoing it is adjudged and decreed that a  writ of mandamus  issue, directed to the respondent judge of  the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So o rdered.

 J. Perfecto, dissenting In times of war the Commander in Chief of an army is vested  with extraordinary inherent powers, as a natural result of the nature of the military operations aimed to achieve the purposes of his country in th e war, victory being paramount among them. 1. “PROCESS” IN THE OCTOBER PROCLAMATION  A “process” is an instrument in an epistolary fr om running in the name of the sovereign of a state and issued out of a court of justice, or by a judge thereof, at the commencement 17

THE FRATERNAL ORDER OF UTOPIA  of an action or at any time during its progress or incident thereto, usually under seal of the court, duly attested and directed to some municipal officer or to the party to be bound by it, commanding the commission of some act at or  within a specified time, or prohibiting the doing of some act. The cardinal requisites are that the instrument issue from a court of justice, or a judge thereof; that it run in the name of  the sovereign of the state; that it be duly attested, but not necessarily by the judge, though usually, but not always, under seal; and that it be directed to someone commanding or prohibiting the commission of an act.

That our laws are in full force and effect and legally binding; that “all laws, regulations and processes of any other government are null and void and without legal effect”, are provisions clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no possibility of  error, and there is absolutely no reason in trying to find different meanings of the plain words employed in the document.

There is no question that the word process, as used in the October Proclamation, includes all judicial processes or proceedings.

General MacArthur sought to annul completely the officials acts of the governments under the Japanese occupation, because they were done at the shadow of the Japanese dictatorship. All traces of Japanese influence were sought to be e radicated.

The intention of the author of the proclamation of including  judicial processes appears clearly in the preamble of the document. It is evident from the above-mentioned words that it was the purpose of General MacArthur to declare null and void all acts of government under the Japanese regime, and he used, in section 3 of the dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial branch of the government which functioned under the Japanese regime. 2. THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLYTHE INTENTION OF THE AUTHOR  Justice Holmes: “When the words in their literal sense have a plain meaning, courts must be very cautious in allowing their imagination to give them a different one.”

3. THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY 

4. INTERNATIONAL LAW IS NOT FIXED; IT IS CONSTANTLY  CHANGING  An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the country, it is developing incessantly, it is perpetually changing in forms. Our Constitution provides: The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of  the Nation. (Sec. 3, Art. II.) Due to that characteristic pliability and imprecision of  international law, the drafters of our Constitution had to content themselves with "generally accepted principles." We must insist, therefore, that the principles should be specific and unmistakably defined and that there is definite 18

THE FRATERNAL ORDER OF UTOPIA  and conclusive evidence to the effect that they generally accepted among the civilized nations of the world and that they belong to the current era and no other epochs of  history. Is there any principle of international law that may effe ct the October Proclamation? We tried in vain to find out in the majority opinion anything as to the existence of any principle of international law under which the authority of  General MacArthur to issue the proclamation can effectively be challenged. No principle of international law has been, or could be invoked as a basis for denying the author of the document legal authority to issue the same or any part thereof. That General MacArthur had full legal authority to issue the October Proclamation, and that no principle of the international law is violated by said proclamation, no international wrong being committed by the reversal by the legitimate government of the acts of the military invader. That said proclamation was issued in full conformity with the official policies to which the United States and Philippine Governments were committed, and the annulment of all the facts of the governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by the wrongs committed by the Japanese.  J. Hilado, dissenting 1. The proceedings in said civil case No. 3012 are null and  void under General of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

2. (a ) The government styled as, first, the "Philippine Executive Commission "and later as the Republic of the Philippines", established here by the Commander in Chief  of the Imperial Japanese Forces or by his order was not a de-facto  government —  the so-called Court of First Instance of Manila was not a de facto  court, and the judge who presided it was not a de facto  judge; ( b ) the rules of  International Law regarding the establishment of a de facto  Government in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments thus established here by  Japan; 3. The courts of those governments were entirely different from our Commonwealth courts before and after the  Japanese occupation; 4. The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of  either or both of those Japanese-sponsored governments; 5. Even consideration of policy of practical convenience militates against petitioner's contention.

Governments are either de jure or de facto.

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It is established by authority of the legitimate sovereign or the will of the people as expressed in the fundamental law.

It is established in defiance of the legitimate sovereign.

1) The government that gets possession and control of, or usurps, by force or by the voice of the majority. 2) That which is established and maintained by invading military forces. 3) Established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. Co Kim Cham v. Valdez Tan  Keh , 75 Phil. 113 (1945)

De jure. It was established by authority of the legitimate sovereign, the people. It was a revolutionary government established in defiance of the 1973 Constitution. In re Letter of Associate Justice Puno, 210 SCRA 589, 598 (1992)

De jure. She assumed office in accordance with the rule of  succession under the Constitution.

 A belligerent (Japan) has authority (under the laws of war  –  Hague Conv.) to occupy the territory of the enemy (Philippines) and establish therein a de facto government (Philippine Executive Commission). Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation,  Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no  jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the  Japanese). The political laws of the legal government are suspended, but not the civil laws (unless superseded by occupying power  – as in this case). The bonds of society are not severed. Similarly, acts done by the occupying power (Executive Commission) such as laws, regulation, decisions,  w/c are not political in nature also subsist even after the liberation (doctrine of postliminy). Otherwise, social life will be paralyzed.4

The AFP Anti-Graft Board (AFP Board, Petitioner) under the Presidential Commission on Good Government (PCGG, 4

Daniel Darvin, Darvin’s Digest of Political Law  Cases. 20

THE FRATERNAL ORDER OF UTOPIA  Petitioner) investigated reports of alleged unexplained  wealth of Major General Josephus Q. Ramas (Ramas, Respondent).

The Sandiganbayan granted respondents’ motion and dismissed the complaint on the following grounds:

Police officers, acting under the authority of the PCGG, conducted a raid on the house of Elizabeth Dimaano (Dimaano, Respondent), a confidential agent of the Military Security Unit and alleged of mistress of Ramas. On 3 March 1986, the raiding team served at Dimaano’s residence a search warrant captioned “Illegal Possession of Firearms and Ammunition.” Dimaano was not present during the raid but Dimaano’s cousins witnessed the raid. The raiding team seized the items detailed in the seizure receipt together with other items included in the search warrant.

1) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz, Jr. v. Sandiganbayan 6 and Republic v. Migrino   which involve the same issues. 2) No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas and Dimaano. 3) The evidence adduced against Ramas does not constitute a prima facie case against him.

The raiding team seized the following items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45; communications equipment, cash consisting of Php2,870,000 and US$50,000,  jewelry, and land titles. Of these items, the money, communications equipment, jewelry and land titles were not included in the warrant. The AFP Board then filed complaints against Ramas and Dimaano for alleged violations of RA 3019 (Anti-Graft and Corrupt Practices Act) and RA 1379 (The Act for the Forfeiture of Unlawfully Acquired Property). Respondents Ramas and Dimaano filed a motion to dismiss the complaint. Citing Republic vs Migrino 5 , the respondents argued that the PCGG did not have jurisdiction to investigate and prosecute military officers by reason of mere position held  without showing that such officers were “subordinates” of  former President Marcos. 5

Republic v. Migrino, G.R. No. 89483, 30 August 1990, 189 SCRA  289.

4) There was an illegal search and seizure of the items confiscated. Subsequently, Petitioner filed a petition for review on certiorari asking the high court to set aside the resolution of the Sandiganbayan dismissing the complaint.

a) W/N the PCGG had jurisdiction to investigate the respondents. b) W/N the Sandiganbayan’s dismissal of the case prior to the completion of the presentation of evidence was proper.

6

Cruz v. Sandiganbayan, G.R. No. 94595, 26 February 1991, 194 SCRA 474. 21

THE FRATERNAL ORDER OF UTOPIA 

c1) W/N the revolutionary government organized after the EDSA Revolution was bound by the Bill of Rights of the 1973 Constitution during the interregnum.7 c2) W/N the protection accorded to individuals under the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights (UDHR) remained in effect during the interregnum.

c3) W/N the search and seizure conducted by police officers on Dimaano’s residence was legal.

First, Ramas was not a “subordinate” of former President Marcos in the sense contemplated under EO No. 1 and its amendments. Republic vs. Migrino held that mere position held by a military officer does not automatically make him a “subordinate” as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association  with former President Marcos.

Second, Petitioner did not claim that the President assigned Ramas’ case to the PCGG. In sum, the PCGG had no jurisdiction over the Respondents.

a) The PCGG, through the AFP Board, could only investigate the unexplained wealth and corrupt practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the administration of former President Marcos by being the latter’s immediate family, relative, subordinate or close associate, taking undue advantage of their public office or using their powers, influence x x x; or (2) AFP personnel involved in other cases of graft and corruption provided the President assigns their cases to the PCGG.

b) The failure to complete the presentation of evidence was due to Petitioner’s own fault. The case had been pending for four years before the Sandiganbayan dismissed it. Petitioner filed its amended complaint on 11 August 1987, and only began to present its evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence. However, despite this sufficient time, petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for postponements and extensions.

Ramas did not fall under either category.

Furthermore, the rulings in Migrino 5 and Cruz 6 are sufficient bases for the dismissal of the complaint.

7

In sum, the Sandiganbayan did not err in dismissing the complaint.

Following the EDSA Revolution and the departure of Marcos, a revolutionary government was established. The interregnum was the period from the take-over by the revolutionary government in defiance of the 1973 Constitution to the promulgation of the Freedom Constitution. In other words, Note: The Freedom Constitution is NOT the 1987 Constitution which is currently in effect. The Freedom Constitution came before the 1987 Constitution and was provisional.

c1) The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquino’s Proclamation No. 3 dated 25 March 1986, the EDSA  Revolution was The resulting government was 22

THE FRATERNAL ORDER OF UTOPIA  indisputably a revolutionary government bound by no constitution or legal limitations. During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum.

c2) The revolutionary government, after installing itself as the de jure  government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Under  Article 17(1) of the Covenant, the revolutionary government had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” The revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As the de jure  government, the revolutionary government could not escape responsibility for the State’s good faith complianc e with its treaty obligations under international law.

In sum, the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum.

c3) The warrant for the search and seizure was issued by the authority of the Revolutionary government and was therefore valid. Consequently, the seizure of items specified in the warrant was also valid. However, the search and seizure of items not specified in the warrant was unlawful. While the Bill of Rights which protected citizens from unlawful seizures could not be invoked, similar rights guaranteed under the Covenant and Declaration remained in effect. Thus, the items illegally seized must be returned to the person from whom the raiding team seized them.

a) The PCGG had no jurisdiction to investigate and cause the filing of a forfeiture petition against Ramas and Dimaano. b) The Sandiganbayan did not err in dismissing the case before the completion of the presentation of petitioner’s evidence. c1) The revolutionary government was established in defiance of the provisions of the 1973 Constitution. It was a de jure government4 and was not bound by a constitution or the Bill of Rights.

23

THE FRATERNAL ORDER OF UTOPIA  c2) The revolutionary government was bound by the treaty obligations of the Philippines. Thus, the protection under the ICCPR and the UDHR remained in effect. c3) The search and seizure was legal with regard to the items specified in the warrant. On the other hand, the search of seizure of items not included in the warrant was illegal.

The PCGG’s task is to recover the alleged ill -gotten wealth of the Marcoses.

The Bill of Rights of the 1973 Constitution requires the government to procure a search warrant before searching any property of an individual. Although the Constabulary secured a warrant, they seized items not included in the warrant and hence, petitioner argued that the search  was nevertheless valid since the Bill of Rights was nonexistent during that time.

 Although there was no fundamental law, the State still has to comply with its treaty obligations under the international law. The Philippines is a signatory of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which guaranty the life, liberty, and property of an individual.

It is the period where no Constitution or fundamental law existed. As such, the Bill of Rights was not operative during the interregnum. Dimaano’s house was searched by PCGG, yielding firearms (sequestration order) and money, and titles, jewelry (not covered). Allegedly illegal search.

February 26, 1986 - March 24, 1986 Republic contends that the Bill of Rights was not operative during interregnum (between overthrow of Marcos and enactment of 1987 Constitution). March 25, 1986 - February 10, 1987

February 11, 1987

24

THE FRATERNAL ORDER OF UTOPIA  Items not covered by order must be returned. But sequestration was valid. Puno Dissent: the right against  search and seizure existed during that time, based on  natural law.8 

public lands, bodies of water, mineral and other resources found within ancestral domains are private but community property of the indigenous peoples; “(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands; “(4) Section 7 which rec ognizes and enumerates the rights of the indigenous peoples over the ancestral domains; “(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands;

Isagani Cruz and Cesar Europa filed a suit assailing the constitutionality of certain provisions of RA 8371 (Indigenous Peoples Rights of 1997). a) Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground that they amount to an unlawful deprivation of the State’s ownership over lands of the public domain in  violation of the (all public lands belongs to the state) embodied in Section 2, Article XII of the Constitution: “(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)  which, in turn, defines ancestral lands; “(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable

8

Daniel Darvin, Darvin’s Digest of Political Law  Cases.

“(6) Section 57 which provides for priority rights of th e indigenous peoples in the harvesting, extraction, development or exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a period not exceeding 25 years, renewable for not more than 25 years; and “(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the ancestral domains and portions thereof   which are found to be necessary for critical  watersheds, mangroves, wildlife sanctuaries,  wilderness, protected areas, forest cover or reforestation.

b) Petitioners also contend that, by providing for an allencompassing definition of “ancestral domains” and 25

THE FRATERNAL ORDER OF UTOPIA  “ancestral lands” which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private landowners.

“(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving indigenous peoples; and

c) In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making customary law applicable to the settlement of  disputes involving ancestral domains and ancestral lands on the ground that these provisions violate the of the Constitution.

“(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the indigenous peoples.”

These provisions are: “(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and which vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands; “(2) Section 52[i] which provides that up on certification by the NCIP that a particular area is an ancestral domain and upon notification to the following officials, namely, the Secretary of Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary of Justice and Commissioner of the National Development Corporation, the  jurisdiction of said officials over said area terminates; “(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied first with respect to property rights, claims of  ownership, hereditary succession and settlement of  land disputes, and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples;

d) Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of  1998, which provides that “the administrative relationship of  the NCIP to the Office of the President is characterized as a lateral but autonomous relationship for purposes of policy and program coordination.” They contend that said Rule infringes upon the over executive departments under Section 17, Article VII of the Constitution. 7 members of the court voted to dismiss the petition and 7 others voted to the grant the petition. The necessary majority was not obtained and the case was again deliberated upon. However, the voting remained the same. Pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is

In public law, a distinction is made between imperium and dominium. Imperium is the government authority possessed by the state expressed in the concept of sovereignty. Dominium is the capacity of the state to own or acquire property.Section 2 Article XII of the 1987 constitution expressly provides that all lands of the public domain and other natural resources are owned by the State. 26

THE FRATERNAL ORDER OF UTOPIA  resolved in favor of IPs.  According to the IPRA, it consists of all areas generally belonging to the IP's comprising lands, inland waters, coastal areas, and natural resources therein possessed by them since time immemorial.

The right to negotiate & enter into agreements cover only exploration  but not exploitation of nat. resources & for the purpose of  protecting the same only.

It refers to land possessed, occupied, and utilized by IP's since time immemorial.  Justices Davide, Kapunan, Bellosillo, Quisumbing, Santiago, Puno and Mendoza)  Ancestral domain is broader since it covers more than land and includes, inland waters, coastal areas, and natural resources.

Seven members of the court voted to grant the petition and 7 others voted to dismiss the petition. The majority vote was not obtained. The case was again deliberated upon but the result remained the same. Pursuant to the Rules of Civil Procedure, the petition will be dismissed if the majority was not obtained, even if the votes ended up in a tie.

Constitutionality of provisions of Indigenous Peop les’ Rights  Act (IPRA) challenged –  as violative of regalian doctrine, & due process. Provides that ancestral domains form communal property of IPs, granting them rights to harvest/exploit nat. resources, enter into agreements concerning the same, application of customary law & traditions/practices in resolving disputes, all doubts

Melo, Pardo, Buena, Gonzaga-Reyes, Panganiban and Vitug)9

9

and

 Justices De Leon,

Daniel Darvin, Darvin’s Digest of Political Law  Cases. 27

THE FRATERNAL ORDER OF UTOPIA 

Consolidation of 5 cases, namely: GR No. 183591 Petitioners  –  Province of North Cotabato (represented by Gov. Jesus Sacdalan and Vice Gov. Emmanuel Pinol) Respondents  –  Government of the Republic of the Philippines Peace Panel on Ancestral Domain Note: , as  well as Secretary Rodolfo Garcia, Atty. Leah  Armamento, and Gen. Hermogenes Esperon (Presidential Adviser on Peace Process) GR No. 183752 Petitioners   –  City Government of represented by Mayor Celso Lobregat Respondents  – same

Zamboanga,

GR No. 183893 Petitioners  City of Iligan, represented by Mayor Lawrence Lluch Cruz Respondents  –  same, with Executive Secretary Eduardo Ermita GR No. 183951 Petitioners  – Provincial Government of Zamboanga del Norte, represented by Gov. Rolando Yebes, etc. Respondents  – GRP GR No. 183962

Petitioners  –  Ernesto Maceda, Jejomar Binay, Aquilino Pimentel III Respondents   –  GRP, MILF Negotiating Panel represented by Chairman Mohagher Iqbal Petitioners-in-intervention   –  Franklin Drilon, Adel Tamano, Senator Manuel Roxas, City of Isabela, Province of Sultan Kudarat, peoples in Mindanao not belonging to MILF, etc.

Center of Controversy: , or the Memorandum of   Agreement on the Ancestral Domain, Aspect of the between GRP and MILF. It is scheduled to be signed on at . The petitioners contended that GRP and Presidential  Adviser on Peace Process drafted the terms of the MOA-AD even without consultation with the local government units affected (see petitioners). They are invoking their right to information on matters of public concern (Article 3, Section 7 of the 1987 Constitution), seeking the disclosure of the complete contents of the MOA-AD. In addition, the petitioners pray that the City of Zamboanga be excluded (to be  from the Bangsamoro Juridical Entity, or the discussed later) 

MILF, or the Moro Islamic Liberation Front was established in March 1984 under the leadership of Salamat Hashim. It splintered from the Moro National Liberation Front (headed by Nur Misuari), because Salamat perceived that the MNLF is shifting away from Islamic ideologies to Marxist-Maoist orientations.

28

THE FRATERNAL ORDER OF UTOPIA  Since 1996, there was already a long process of peace negotiations between the government and the MILF such as the Agreement on Cessation of Hostilities (1997), and General Framework of Agreement of Intent (1998), but still it  was not successful. 1999-2000: President Estrada declared an all-out war when the MNLF took control of Kauswagan, Lanao del Norte. It lasted until PGMA assumed office (2001): peace negotiation resumes, with the help of the Malaysian Government through Prime Minister Mahathir Mohammad. The GRP and the MILF finally negotiated. The two panels had a meeting in Tripoli and came out with the GRPMILF Tripoli Agreement on Peace. Some basic aspects are: Security  – Ceasefire Status between partie. Rehabilitation  –  Implementing guidelines on the Humanitarian Rehabilitation  Ancestral Domain  –  parties simply agreed that it will  be discussed in their next meetings  Despite the efforts, there were still incidents of violence. In 2003, Hashim passed away and replaced by Al-Haj Murad. The chief peace negotiator was taken over by Mohagher Iqbal. In 2005 several talks were held in Kuala Lumpur between the GRP and the MILF, until they drafted the MOA-AD in its final form, ready to be signed on August 5, 2008.

The terms of the MOA-AD were divided into 4: Concepts  and Principles, Territory, Resources, and Governance  (Sidenote: There are too many terms in the MOA-AD. What  you are about to read are the most important parts of the  memorandum) 

Bangsamoro People  –  referred to as the natives or original inhabitants of Mindanao and its adjacent islands, including Palawan and the Sulu archipelago at the time of conquest or colonization, including their descendants and spouses. Bangsamoro Homeland  –  ownership is vested in the Bangsamoro People Bangsamoro Juridical Entity (BJE)  –  granted the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of Bangsamoro (Sidenote: Think  of it as a substate.) 

Core: Present geographic area of ARMM which includes Lanao del Sur, Maguindanao, Sulu, TawiTawi, Basilan, and Marawi City, and some municipalities of Lanao del Norte, and other provinces  which will vote on a plebiscite as to whether or not they want to be included in the BJE. BJE and the RP shall exercise joint jurisdiction, management, and authority over all natural resources.

29

THE FRATERNAL ORDER OF UTOPIA 

BJE is free to enter into trade relations with other countries. External defense is the responsibility of RP.

c) W/N the GRP violated the Constitutional and Statutory provisions on and the  when the negotiated the MOA-AD by not disclosing to the public each stage of the negotiation process – YES.

Natural resources production: 75-25 in favor of BJE d) W?N the contents of the MOA-AD violate the Constitution and the laws – YES. There will be a multinational third party who will implement the Comprehensive Compact, to ensure that the terms in MOA-AD are followed. Relationship between RP and BJE is described as: associative, characterized by shared authority and responsibility.  Any provisions that will amend the existing legal framework shall take effect upon the signing of the Comprehensive Compact.(Sidenote: Is this legal or  not? It will be discussed later that this  implies an  amendment to the Constitution)  BJE can also establish own institutions such as the civil service, electoral, financial, banking, education, legislation, legal, economic, etc.

a) W/N the constitutionality and legality of MOA is ripe for adjudication  – YES. b) W/N petitions are moot and academic  –  NO, as the issue is of paramount interest to the public.

Right of access to public documents is a self-executory provision. A law need not be enacted for the provision to be enforceable. MOA-AD is a public document because it involves the sovereignty and territorial integrity of the state, which directly affects the lives of  the public at large. Since it is a public document, MOA-AD must be disclosed because the public has a legitimate interest in matters of social and political significance. It aids the people in decision making by giving them a better perspective in the vital issues confronting the nation. Matters to information of public concern covers every step and negotiation leading to the consummation of  the contract. Otherwise, this right cannot be exercised if no contract is consummated.  Article II, Section 28 of th e Constitution also provides that it is the duty of public officials to give information even if nobody demands.

30

THE FRATERNAL ORDER OF UTOPIA   An essential element of these freedoms is to keep open a continuing dialogue or process of  communication between the government and the people. Free political discussion should be maintained. GRP failed in this aspect. Three laws animate these imperatives, which was neglected by the Presidential Adviser on Peace Process:  –  governs the GRP. It states that peace process shall be defined not by the government alone, but by all the Filipinos as one community.  –  all national offices should conduct consultations before any project or program critical to environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality.  –  indigenous people have the right to fully participate at all levels of decision making in matters which may affect their rights, lives, and destinies.

The MOA-AD is unconstitutional because it has provisions which are inconsistent with the international legal concept of association, specifically the provisions pertaining to the BJE’s capacity to enter into economic and trade relations with foreign countries, commitment of RP to ensure the BJE’s

participation in meetings and events in the ASEAN and specialized UN agencies, and the responsibility of RP over BJE’s external defense. These provisions indicate that the parties aimed to transform ARMM into a juridical entity which has a status of an associated state, or a close approximation of it. It is NOT RECOGNIZED in the 1987 Constitution. It is a threat to the sovereignty of the Republic of the Philippines. Examples of Constitutional conflicts if the MOA-AD is implemented:  Article 1 on the National Territory. During the oral arguments, Atty. Sedfrey Candelaria stated that this provision would have to be amended to conform to the MOA-AD. Section 3, Article II on the role of the Armed Forces of the Philippines as "protector of the people and the State. Under the MOA-AD, the  AFP's role is only to defend the BJE against external aggression.  Article III on the Bill of Rights. The MOA-AD does not state that the Bill of Rights will apply to the BJE. The MOA-AD refers only to "internationally recognized human rights instruments" such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of  Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.

31

THE FRATERNAL ORDER OF UTOPIA  Section 1, Article VI on the Legislative Department. Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOAAD, the BJE shall " " like a legislature whose laws are not subordinate to laws passed by Congress. Section 1, Article VII on executive power.[23] Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive  who will be under the supervision of the President. Section 16, Article VII on the President's power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments. All public officials in the BJE, including military officers of any rank in the BJE internal security force,  will be appointed in accordance with the BJE's own basic law or constitution. Section 17, Article VII on the President's control over all executive departments.[26] The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE. Section 18, Article VII on the President as "Commander-in-Chief of  armed forces of  the Philippines." Under the MOA-AD, the President will not be the Commander-in-Chief  of the BJE's internal security force. The BJE's

internal security force will not be part of the  AFP chain of command. Section 21, Article VII on the ratification of  treaties and international agreements by the Senate.] This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries. Section 1, Article VIII on judicial power being  vested in Supreme Court. Since the BJE  will have " x x x ," the BJE will also have its own Supreme Court.

During your discussion with Dean Candelaria, he might appear to disagree with the ruling in the case. His primary contention is that negotiating with the MILF is a very sensitive process. One cannot just disclose each and every step of the negotiation, because it involves matters that needs finalization. If the government really wants peace  with the MILF, then it should let the GRP do its job. The constitution might have to be amended at this point. Moreover, theories cannot exceed reality. Is the right to public information still holds even if there are lots of people dying each day because of the unresolved conflict between the MILF and the government?

Simply put, the court is under the opinion that the BJE is not a Local Government Unit since it enjoys benefits other LGUs 32

THE FRATERNAL ORDER OF UTOPIA  don't possess. The BJE has certain characteristics that only an independent state would have, such as having its own  judicial system. The court fears that the BJE will eventually completely be independent from the Philippines due to the provisions of the Memorandum of Agreement.

7) stating that Bangsamoro ancestral domain not part of the public domain (treated as Bangsamoro homeland) 8) practically treats BJE as an “associated state” i n international law (a transitional device leading to full independence as exemplified by Micronesia & Mashall Islands w/ respect to US)

The RP Negotiating Panel entered into a Memorandum of   Agreement (Ancestral Domain) w/ the MILF for creation of  “Bangsamoro Juridical Entity” (BJE): 1) recognizing the Bangsamoro peoples’ right to self governance

It implies powers that go beyond anything that may be validly granted to LGUs under the Constitution. 10

2) empowering it to enter into trade relations w/ foreign states 3) ensuring its participation in international meetings (ASEAN, UN, etc) on border agreements and other related matters 4) granting it rights to and territorial  waters and sharing of minerals/economic resources  w/ national government over the latter  (3:1 in favor of  BJE) 5) joint jurisdiction over territorial waters, but exclusive jurisdiction over internal waters, w/ full right to exploit resources therein 6) guaranteeing that it will secure its territory against foreign invasion 10

Daniel Darvin, Darvin’s Digest of Political Law  Cases. 33

THE FRATERNAL ORDER OF UTOPIA  11

.  A “judicial opinion” is a court’s reasoned explanation of its decision. It is merely an explanation of  reasons for judgment . A case decided by an entire court. It is the most persuasive opinion in our judicial system, right below a Supreme Court opinion. . Agrees with the result, but for different reasons. . Objects to the result of the majority opinion. . A “majority opinion” is one in which more than half the court agrees with the result and the reasoning. . A “plurality opinion” resolves an appeal in which a majority agrees with the result but not with the reasoning. . A “decree” decides a motion or matter that sounds in equity.  An “order” is an oral or written court directive on a question of law, as opposed to equity, punishable by contempt if disobeyed.  A “ruling” is a court order made during lititgation, and necessarily before judgment. 11

Gerald Lebovits, Technique: A Legal Method to the Madnes , 75 New York Bar Association Journal 64, 64 (2003).

 A “judgments” is the final resolution of an action or proceeding.  A “decision” resolves a motion, application,  write, or appeal.

Rulings and judgments, not rules or reasoning, are affirmed or reversed. Rules and reasoning are followed or not followed. The decision of a lower court is met with approval by a higher court. If a case has more than one decision, one can be affirmed and another reversed. The decision of a lower court is reversed.  A case “remanded” is returned to a lower court  with directions to redo or reconsider some aspect of the case.  A lower court’s opinion is “disapproved”, not overturned or overruled, by a later case, not reversed or modified directly.  A case or issue is “upheld” or “overturned” by another, later case Courts “sustain” (allow) or “overrule” (disallow) objections Motions are “granted” or “denied”

Decisions can be “modified”, meaning the modifications can cover one or more aspect of a 34