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Legal history of the Philippine Judicial System Due largely to the Philippines colonial history, the impression persists

that the system and administration of justice within the archipelago is but a reflection of the vestiges of the past. In tracing its roots, it is inevitable that one reaches into the distant past in order to understand the influences that shaped and molded the Philippine Judicial System. In his work, The Spanish Antecedents of the Philippine Civil Code1, Professor Ruben Balane of the U.P. College of Law traces the historical background of the Philippine legal system. He begins his discourse by describing the disorderliness of the system and anchoring it on the history itself of Spain. Thus he says: The colony was governed by a bewildering mass of laws, degrees, ordinances, statutes, regulations, and so forth, issuing either from the Cortes or from His (or Her) Most Catholic Majesty directly or, more often, through the formidable Consejo de las Indias. Nor were these laws consistent with one another; on the contrary, it was a kind of legal bedlam, or, to use Sinibaldo de Mas imagery a vast sea in which are found abundantly the resources necessary tostultify the course of justice. The reason for this great disorder went beyond mere problems of colonial administration; rather one has to go into the very core of Spanish history to discover the cause. Of the 2,270 articles in the new Civil Code, around 57 percent were derived either verbatim translation or by adaptation from the Spanish Code.2 The Spanish influence in our system of laws is clearly obvious, especially if we consider that this 57 percent refers to the most basic provisions, like the law on persons, the law on property, on succession, and on obligations.3 Dean Pacifico Agabin delves deeper and traces the roots of the Philippine Civil Code from RomanoGermanic elements, to which were added the concepts and principles of equity in England and of torts in America.4 But, even with such a recognition of outside influences, Dean Agabin succinctly argues that our Civil Code is an enactment of the morals of the Catholic religion into law, and perpetuated the institutions of Catholicism.5 This is evidenced by the Report of the Code Commission which, argues Agabin, is a restatement of the Aquinian concept of natural law and largely explains the moral orientation of the Civil Code: in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man When it is
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The Spanish Antecedents of the Philippine Civil Code, Balane, Ruben F., U.P. Law Center, 1979 Ibid., p.43 3 Ibid. 4 The Philisophy of the Civil Code, Agabin, Pacifico, 66 Philippine Law Journal 1(1991) 5 Ibid., p.19

reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one cannot but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes.6 In Estrada v. Escritor7, the Supreme Court had the occasion of reinforcing this observation as it clarified the free exercise of religion clause versus the non-establishment clause in the Constitution:
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious 8 functions and the friars exercised civil powers. Catholics alone enjoyed the right of 9 engaging in public ceremonies of worship. Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes 10 against the state religion. The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of "separation of church and state" was transported to Philippine soil.

Dean Agabin further explains that the innovation that characterized the Civil Code, pertaining to the philosophy of individualism it exhibits in certain aspects, is derived from the individualism of American common law. These pertains to (1) independent civil actions, similar to the American law on torts, and (2) actions for damages for violation of the rights enumerated in the Bill of Rights, or for violation of privacy.11 The new Family Code itself, based on his observation, evinces the adoption of medieval attitude on marriage as a contract between families, instead of one between individuals.12 When it comes to property law, economic individualism is given much premium where sovereignty of the property owner and the property rights of the family are still basic tenets of our law on property.13 The same principle applies to the laws on Succession which centers on the conservation of property within the family and protection of the shares of compulsory heirs.

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Report of the Code Commission 40 A.M. No. P-02-1651, August 4, 2003 8 Martinez, H., "The High and Impregnable Wall of Separation Between Church and State", Philippine Law Journal (1962), vol. 37(5), p. 748, 766. 9 Article II. 10 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), p. 284. 11 Agabin, P.20 12 Ibid., p.21 13 Ibid., p.22

Even with a strong bias for its Spanish roots, common law tradition from America and England permeates within our legal system. In the case of In re Application of Max Shoop for admission to practice law, Philippine Reoprt, November 29, 1920, Justice Malcolm had the occasion to elaborate on the balance between the two legal systems and its manifestation in our judicial system. Quoting the case of U.S. v. Abiog and Abiog (37 Phil., 137): What we really have, if we were not too modest to claim it, is a Philippine Common Law influenced by the English and American Common Law, the derecho comun of Spain, and the customarly law of the Islands and builded on a case law of precedents. there is a wide field of use of Anglo-American cases in the interpretation and application of the remnants of the Spanish statutes. Such is of even greater importance in showing the real permanency of the hold which Anglo-American Common Law has fastened upon the jurisprudence of this jurisdiction. The foregoing two groups of cases in combination, those under the subjects covered by Spanish statutes and those under the subjects covered by American-Philippine legislation and effected by the change of sovereignty, show conclusively that AngloAmerican case law has entered practically every one of the leading subjects in the field of law, and in the large majority of such subjects has formed the sole basis for the guidance of this court in developing the local jurisprudence. The practical result is that the past twenty years have developed a Philippine Common Law or case law based almost exclusively, except where conflicting with local customs and institutions, upon Anglo-American Common Law. It would be then natural to form the conclusion that the Philippine legal system is but an amalgamated shadow of Spanish and American influences. But, as Vicente Mendoza argues in The Origin and Development of the Philippine Constitutional System14, the Philippine constitutional system is not similar to that of the United States simply because of the allocation of powers that our constitution affords the government. Specifically, where the American Constitution is premised on a profound distrust of power, the Philippine Constitution of 1935 was founded on faith in the welfare state, administered by a just and responsible government, perhaps under the superintendence of a wise and independent judiciary.15 But, even with the assertion of dissimilarities between the legal systems, the Philippine justice system mutated into a system of patronage politics largely due, still, to American influences. Dean Again points out that:

The Origin and Development of the Philippine Constitutional System, in From Mc Kinleys Instructions to the New Constitution, Mendoza, Vicente V., 1978 15 Ibid., p.52

The colonial administrators implanted American institutions on Philippine soil, including American jurisprudence and the institution of judicial review. Unfortunately, as Karnow observes, the Americans coddled the elite while disregarding the appalling plight of the peasants, thus perpetuating the feudal oligarchy that widened the gap between rich and poor.16 He further argues that we cannot take comfort in the Filipinization of the courts when the 1935 Constitution was ratified due to several reasons. First, our Supreme Court has never been divided along ideological lines. This is due to what one American political scientist (D. Wurfel) terms as our pragmatic political culture, characterized by political patronage which precludes the development of an ideological political culture. According to him, the importation of an educational system from the U.S. h elped forestall commitment to ideology in the Philippines, and a network of interpersonal obligations also acts as a barrier to ideological commitments that might disrupt it.17 Secondly, Dean Agabin made the observation that members of the Supreme Court traditionally came from the same class, the ruling elite within the Philippine political system, and they adhere to the same ideology of God, mother, and country18. A more important implication of the prevailing characterization of the Philippine judicial system is the pervasive marginalization of vulnerable groups from accessing justice. Dean Agabin gives a more forgiving analysis by saying that losing interests groups may proceed to the courts when their advocacies are no longer entertained by the executive and judicial branches of the government. Because of the innovation in the present constitution defining judicial power, economic interest groups that lose the battle in the legislative and executive forums go up to the Court for redress. It would be an abdication of duty for the Court to refuse to decide on issues that implement economic policies incorporated in the constitution. While there are a number of institutional constraints and technical restraints which the Court can use to deny due course to certiorari petitions involving grave abuse of discretion on the part of the executive and the legislative branches, or to petitions alleging violation of the character, the Court cannot escape its duty to decide appropriate cases on the ground that these treat of economic matters. Industrialization and globalization is the path that we have chosen for development. As our economists admit, there will be winners and there will be losers under this scheme.

The Politics of Judicial Review over Executive Action: The Supreme Court and Social Change in Unconstitutional Essays, by Agabin, Pacifico, University of the Philippines Press and the U.P. College of Law, Diliman, Quezon City, 1996, p.177 17 Ibid., p. 187, citing D.Wurfel, Filipino Politics: Development and Decay (1988), p. 6) 18 Ibid., p.187

Right now, it is easy to tell who will be the losers in our country. It is the weak economic groups who have been marginalized by economic power. Does the Supreme Court recognize a unique function to protect their economic rights under the constitution, or will it refuse to act and let the invisible hand decide the fate of the losers? If so, that means that the losers will themselves become invisible peoples in the eyes of the Constitution. 19 A more piercing analysis comes from Professor Own Lynch in his work entitled The Legal Bases of Philippine Colonial Sovereignty: An Inquiry, wherein he argues: It is no exaggeration to characterize the Philippine legal profession as permeated by a political economy of ignorance. The ignorance often appears to be countenanced by design. It enables the profession to overlook the conservative and elitist nature of the national legal system. It precludes any serious debate as to why many existing laws emanate from the colonial era and have become even more undemocratic during the past four decades. In a more profound sense, ignorance blinds people to the need for a broad-based inquiry as to whether the colonially constructed Republic of the Philippines can ever progress to encompass the nations indigenous heritages and the rights and aspirations of its impoverished majority.20


Judicial Review of Economic Policy Under the 1987 Constitution, Agabin, Pacifico A., 72 Philippine Law Journal:176-194 (1997), p.194 20 The Legal Bases of Philippine Colonial Sovereignty: An Inquiry, Lynch Jr., Owen J., 62 Philippine Law Journal:112 (1988), p.280