LEGAL RESEARCH

Part I

Sources of Legal Research

a. Printed Sources – Constitution, statutes, court decisions, administrative rules and
scholarly commentaries
b. Electronic Sources (for computer assisted legal research) – computer database
containing these and other materials have dramatically changed the nature of legal
research and improved its effectiveness. However, the volume and variety of legal
literature continues to grow, making researcher’s choice of tools and tactics for each
problem more difficult than ever.

Sources of LAW
a. Primary source of law – Constitution, statutes passed by the legislature, ordinances,
regulations and rulings of administrative agencies

a.1. Secondary category of primary sources – decisions of the Supreme Court

b. Secondary materials – treaties, commentaries (for Civil Law: Arturo Tolentino;

Remedial Law: Florenz D. Regalado; Constitutional Law: Father Joaquin Bernas) and
encyclopedias and other writings (example: legal writings/academic journals, IBP
Journals, Lawyer’s Review.)

STATUTORY LAW.
Our statutory law consists mainly of:
a. The 1987 Constitution
b. Treaties and International Agreements
c. Statutes enacted by the Legislature
d. Administrative Rules and Regulations
e. Ordinances by LGUs or Autonomous Regions

I. CONSTITUTION
a. Law of the highest authoritativeness and obligation.
b. “Supreme law of the law”, the ultimate authority to which reference must be made
to determine the validity of national laws, administrative regulations, local
ordinances and executive actions.

Art. 7 (Civil Code) – xxx

When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.

Administrative or Executive acts, orders and regulations shall be valid only when
they are not contrary to laws or the Constitution.

SUPREMACY OF THE CONSTITUTION. (Sec. 5, Art. VIII, Constitution)

(a) Grounds for declaring a law unconstitutional –

1. the enactment of law may not be within the legislative powers of the law making
body;
2. Arbitrary methods may have been established;
3. The purpose or effect violates the constitution or its basic principles.

(In Re: Cunanan – In the Matter of the Petitions for Admission to the Bar of Unsuccessful
Candidates of 1946 to 1953; ALBINO CUNANAN, ET AL, Resolution 1954 - “the Bar
Flunkers’ Case” 94 Phil 534 – RA 972 decreed that bar candidates who obtained in the
bar exams of 1946 to 1953 a general average of 70% without failing below 50% in any
subject should be admitted in the practice of law despite their having been refused by
the Supreme Court.) Held: (1) “It is obvious, therefore, that the ultimate power to grant
license for the practice of law belongs exclusively to this Court, and the law passed by
Congress on the matter is of permissive character, or as other authorities say, merely to
fix the minimum conditions for the license.”; (2) “The law in question, like those in the
case of Day and Cannon, has been found also to suffer from the fatal defect of being a
class legislation, and that if it has intended to make a classification, it is arbitrary and
unreasonable.” xxx “Pursuant to the law in question, those who, without a grade below
50 per cent in any subject, have obtained a general average of 69.5 per cent in the bar
examinations in 1946 to 1951, 70.5 per cent in 1952, 71.5 per cent in 1953, and those
will obtain 72.5 per cent in 1954, and 73.5 per cent in 1955, will be permitted to take
and subscribe the corresponding oath of office as members of the Bar, notwithstanding
that the rules require a minimum general average of 75 per cent, which has been
invariably followed since 1950. Is there any motive of the nature indicated by the
abovementioned authorities, for this classification? If there is none, and none has been
given, then the classification is fatally defective.”

(b) General rule: Law declared Unconstitutional confers no right, creates no office,
affords no protection, and justifies no acts performed under it.

Exception: The DOCTRINE OF OPERATIVE FACT, as an exception to the general

rule, only applies as a matter of equity and fair play. ) Republic v. Court of Appeals,
G.R. No. 79732, November 8, 1993, 227 SCRA 509.)  The doctrine is applicable when
a declaration of unconstitutionality will impose an undue burden on those who have
relied on the invalid law.

Thus, it was applied to a criminal case when a declaration of unconstitutionality

would put the accused in double jeopardy. (Tan v. Barrios, G.R. Nos. 85481-82,
October 18, 1990, 190 SCRA 686, citing Aquino, Jr. v. Military Commission No. 2, G.R.
No. L-37364, May 9, 1975, 63 SCRA 546.) or would put in limbo the acts done by a
municipality in reliance upon a law creating it. (Municipality of Malabang v. Benito,
G.R. No. L-28113, March 28, 1969, 27 SCRA 533).

Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the
judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have changed
their positions. xxx. It is now accepted as a doctrine that prior to its being nullified,
its existence as a fact must be reckoned with. This is merely to reflect awareness
that precisely because the judiciary is the governmental organ which has the final
say on whether or not a legislative or executive measure is valid, a period of time
may have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such
adjudication. (Commissioner of Internal Revenue vs. San Roque Power Corporation,
 GR No. 187485, October 8, 2013 / Taganito Mining Corporation vs. CIR, GR 196113 /
Philex Mining Corp. vs. CIR, GR 197156)

(c) Partial unconstitutionality – where a portion of a statute is rendered

unconstitutional and the remainder valid, the parts will be separated and the
constitutional portion upheld, PROVIDED that the valid portion must be so far
independent of the invalid portion that is fair to presume that the legislature would
have enacted it by itself if they had supposed that they would not constitutionally
enact the other. (Lidasan vs. Comelec 21 SCRA 496)

Administrative/Executive acts. Requisites for validity: (a) the procedure fixed for
its promulgation is followed; (b) the scope of the act is within the statutory
authority granted by the legislature/in harmony with the provisions of the law – if
the act complied with these requisites, it is valid even if the courts are not in
agreement with the policy stated therein or its innate wisdom (Teoxon vs. Members
of the Bd of Administrator 33 SCRA 585)

II. TREATIES AND INTERNATIONAL AGREEMENTS

Agreements made by two or more independent nations with view of public welfare. As
a member of the family of nations, the Philippines is a signatory to and has concluded
numerous treaties and conventions.

The official text of treaties entered between the Philippines and foreign nations is
published in the Official Gazette. Another official source is the publication known as
Treaty Series released by the DFA, beginning August, 1947 at irregular intervals.

TREATY-MAKING IN THE PHILIPPINES

What is a treaty?

a. Under Philippine Laws, Treaties are international agreements entered into by the
Philippines which require legislative concurrence after executive ratification. This
term may include compacts like conventions, declarations, covenants and acts .
(Section 2(b) Executive Order No. 459, Providing for the Guidelines in the
Negotiation of International Agreements and its Ratification).

b. Under International Law, Treaty means an international agreement concluded

between States in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and whatever its
particular designation. (Article 2 (1) (a), Vienna Convention on the Law of Treaties)

c. Not all international agreements are governed by international law. The convention
applies only to those which are “governed by the domestic law of one of the parties
or some other national law chosen by the parties. (Merlin M. Magallona, Primer on
the Law of Treaties, p. 115)

What is an Executive Agreement?

Executive Agreements — similar to treaties except that they do not require legislative
concurrence. (Section 2(b) Executive Order No. 459, Providing for the Guidelines in the
Negotiation of International Agreements and its Ratification)

What is the distinction between a treaty and an executive agreement?

a. The difference between the two is sometimes difficult of ready ascertainment.
(Sayre, “The Constitutionality of Trade Agreements Acts” 39 COLUMBIA L.R. 651,
755, quoted in 3 SCRA 357).

b. Under international law, there is no difference between treaties and executive

agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers. (Hackworth, Digest of
International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs.
Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959]). International law
continues to make no distinction between treaties and executive agreements: they
are equally binding obligations upon nations. (Richard J. Erickson, “The Making of
Executive Agreements by the United States Department of Defense: An agenda for
Progress,” 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign
Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the
Law of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in
Consolidated Memorandum, p. 32.)

c. In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. Generally, treaties of any kind,
whether bilateral or multilateral, require Senate concurrence (Joaquin G. Bernas,
S.J., Constitutional Structure and Powers of Government, Second Edition 1997)
while executive agreements may be validly entered into without such concurrence.
(Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351).

d. The members of the Constitutional Commission acknowledged the distinction

between a treaty and an executive agreement during their deliberations of Section
21 Article VII. One of the issues in the discussions was trying to identify the kind of
international agreements that require Senate concurrence.

e. Commissioner Joaquin Bernas made a clarification by quoting from the decision of

the Supreme Court in the case of Commissioner of Customs vs. Eastern Sea Trading:

“The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered into executive agreements covering
such subjects as commercial and consular relations, most favored nation rights,
patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this has never been
seriously questioned by our Courts.

“Agreements with respect to the registration of trademarks have been concluded by

the executive and various countries under the Act of Congress of March 3, 1881 (21
Stat. 502) . . . International agreements involving political issues or changes of
national policy and those involving international agreements of a permanent
character usually take the form of treaties. But international agreements embodying
adjustments of detail, carrying out well established national policies and traditions
and those involving arrangements of a more or less temporary nature usually take the
form of executive agreements.” (The citation of said case is 3 SCRA 351.)

Commissioner Bernas further explained that international agreements, which

require Senate concurrence, are those, which are permanent in nature. Also, if it is
with prior authorization from Congress, it does not need subsequent concurrence by
Congress. (Bernas, id)

f. The Department of Foreign Affairs in its press release (Press Release No. 314-03; 26
June 2003, Department of Foreign Affairs) said that in executive agreement, there is
 no fundamental change in policy, nor will there be need for legislation to fund the
agreement. It does not impinge on any existing international legal obligation.

What is the rationale for distinguishing a treaty form an executive agreement?

The distinction between a treaty or international agreement and an executive

agreement is of great significance in the Philippines because the procedure followed in
the process of ratification is different.

If what is involved is a treaty, the concurrence by at least two-thirds of all the Members of
the Senate is required. (Section 21, Article VII, 1987 Philippine Constitution). On the
other hand, if what is involved is an executive, there is no such requirement.

What is the procedure for determining whether an agreement is a treaty or an

executive agreement?

a. Internal procedure within the Office of the President and the DFA

In 1988, the Office of the President issued Memorandum Circular 89 to set the
guidelines in case of conflict as to whether an agreement is a treaty or an executive
agreement. (a) The Legal Adviser of the Department of Foreign Affairs (DFA) and the
Assistant Secretary on Legislative Affairs and the Senate will be given opportunity to
comment on the nature of the agreement. (b) Consultation shall be made with the
leadership of the Senate. (c) The Secretary of Foreign Affairs shall make the proper
recommendation to the President. (Memorandum Circular No. 89 of the Office of the
President [1988]).

In 1997, Executive Order 459 was issued and under Sec. 9 thereof, the DFA determines
the nature of an agreement . Said Executive Order is silent if the determination by the
DFA of the nature of agreement can be overturned by the President or not.

If asked which of the two issuances is prevailing, as a rule, being a later act, E.O. 459 is
controlling. However, newly appointed Associate Justice of the Supreme Court Antonio
Eduardo Nachura, and prominent authors in international law Jorge Coquia and Senator
Miriam Defensor Santiago (Chairman of the Senate Committee on Foreign Relations
before adjournment of the 13th Congress) are of the opinion that Memorandun Circular
89 is still binding. (Ramos, Infante, Pasco, Cabugao, “Memorandum on Negotiation and
Treaty Ratification Process.)

What is the current framework for trade negotiations?

a. Who has the power to negotiate or make treaties?

The President has the power to make treaties implicitly in the general grant of authority
in Section 1, Article VII that “The executive power is vested in the President of the
Philippines,” in particular as this is applied in foreign relations. (Merlin M. Magallona, A
Primer in International Law in Relation to Philippine Law, p.50)

By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. (Bayan vs.
Zamora, G.R. No. 138570. October 10, 2000). In many ways, the President is the chief
architect of the nation’s foreign policy; his “dominance in the field of foreign relations is
(then) conceded.” (Cortes, “The Philippine Presidency a study of Executive Power, 2nd
Ed.,” p. 195.) Wielding vast powers an influence, his conduct in the external affairs of
the nation, as Jefferson describes, is “executive altogether." (Cruz, Phil. Political Law,
1995 Ed., p. 223)
Since the President is the head of state in the system of government of the Philippines, he is
the authority in the country’s external or foreign relations. (Pimentel, Jr. vs. Office of the
Executive Secretary, 462 SCRA 622 (2005), p. 632, citing Cortes, The Philippine
Presidency: A Study of Executive Power (1966), p. 187.) Being vested with diplomatic
powers, the President formulates foreign policy, deals with international affairs,
represents the state with foreign nations, maintains diplomatic relations, and enters into
treaties or international agreements . Likewise, the power granted to the Senate to
concur in treaties (Section 21, Article VII, 1087 Constitution) is to be interpreted as
referring to treaties which the President makes and submits to the Senate for
concurrence.

Normally, it is the Head of State or the Head of the Ministry of Foreign Affairs who binds
States in treaties. These persons do not need to produce evidence of full powers to
conclude a treaty. Treaty ratification is one of the incidents of their position. For
purposes of adopting a text to a treaty, the head of the diplomatic mission or accredited
representatives of States to an international conference or one of its organs are
empowered to authenticate or accredit the text of a treaty. If an act was performed
without authorization or without the full powers, a treaty can still be given force and
effect provided it is subsequently confirmed by the State. (Id., Art. 8.)

b. Working procedure

Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise (Pimentel vs. Office of the Executive Secretary, G.R. No. 158088, July
6, 2005):

The usual steps in the treaty-making process are: negotiation, signature, ratification,

and exchange of the instruments of ratification. The treaty may then be submitted for
registration and publication under the U.N. Charter, although this step is not essential to
the validity of the agreement as between the parties.

1. Negotiation may be undertaken directly by the head of state but he now usually

assigns this task to his authorized representatives. These representatives are provided
with credentials known as full powers, which they exhibit to the other negotiators at
the start of the formal discussions. It is standard practice for one of the parties to
submit a draft of the proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even “collapse” in case the
parties are unable to come to an agreement on the points under consideration.

In the Philippines, the negotiation phase of the treaty making process is essentially
performed and controlled by the Executive branch of the government through the
Department of Foreign Affairs and the respective government agencies involved. Once a
treaty proposal is received by the Government the Department of Foreign is tasked to
determine whether or not said agreement is a treaty or an executive agreement. It is the
Chief Executive, through the recommendation of the DFA Secretary, who designates the
persons who will comprise the Philippine delegation and the departments, which will be
involved and consulted in the negotiation.

Pursuant to Executive Order 459, the lead agency in the negotiation of a treaty or an
executive agreement or any amendment thereto shall convene a meeting of the panel
members prior to the commencement of any negotiations for the purpose of establishing
the parameters of the negotiating position of the panel. No deviation from the agreed
parameters shall be made without prior consultation with the members of the
negotiating panel.
The panel of negotiators is normally composed of several individuals from the different
agencies of government who are technical experts and resource persons in certain areas
of specialization. This group of persons is normally referred to as technical working
groups. A treaty, which has far-reaching effects on the different industries, may involve
several technical working groups. The technical working groups would meet and
outline the Philippine position and embody this position in writing. Ideally, the
Philippine position must be in conformity with the outlined policies, development goals
and targets of the government and in general pursue Philippine interest.

During the negotiation process, negotiators of each State party would meet and discuss
to arrive at a mutually beneficial arrangement. Battles over semantics and phrasing are
normal in treaty negotiations. This stage is very tedious and negotiators must be very
vigilant in looking at each particular provision. Before concurring to a particular
provision, said negotiator must agree to it only after consultation with other
negotiators and evaluate if it is in conformity with the outlined Philippine position. In
issues of primordial importance or high significance, public consultation must be
performed to be able to determine its overall impact on the industries that are affected
or parties who will be prejudiced. Negotiators aside from being experts must be strong,
assertive and emphatic in pursuing the Philippine position. Disagreements among the
negotiators over certain provisions is also normal, but some experienced negotiators
have perfected the art of inserting provisions in unexpected sections or rephrasing
rejected provisions to make it appear acceptable. The quote “timing is everything” finds
application in the art negotiations, some negotiators will invoke provisions of doubtful
validity, during such times when negotiators of the other party are already quite tired
or weary from long hours spent on text analysis, interpretation and revision. Once a
final draft of the agreement is reached, it will be sent to the office of the Chief Executive
who will signify his approval. If he approves the agreement, he will forward it to the
Office of the Executive Secretary, who in turn, will attest, to the authenticity and
veracity of the text signed or ratified. The Office of the Executive Secretary receives
texts in their final form but can override these agreements on broad grounds of it being
against the Constitution, the law or public policy, in general.  (Ramos, Infante, Pasco,
Cabugao, Interview, Atty. Minerva Tan, Office of the Executive Secretary, cited in the
“Memorandum on Negotiation and Treaty Ratification Process”)

2. If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where ratification
of the treaty is required. The document is ordinarily signed in accordance with the
alternat, that is, each of the several negotiators is allowed to sign first on the copy which
he will bring home to his own state.

3. Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely and to
give them an opportunity to refuse to be bound by it should they find it inimical to their
interests. It is for this reason that most treaties are made subject to the scrutiny and
consent of a department of the government other than that which negotiated them.
Ratification is generally held to be an executive act , undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed. (Gerhard von Glahn, Law Among Nations, An Introduction to
Public International Law, 4th Ed., p. 486.) A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be bound by
a treaty is expressed by ratification when: (a) the treaty provides for such ratification,
(b) it is otherwise established that the negotiating States agreed that ratification should
be required, (c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to ratification
appears from the full powers of its representative, or was expressed during the
negotiation. (Article 14 of the Vienna Convention, cited in Coquia and Defensor-
Santiago, Intenational Law, 1998 Ed., pp. 506-507.)

In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. (Cruz, Isagani,
“International Law”, 1985 Ed., p.175)

4. The next step is the exchange of the instruments of ratification, which usually also
signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature. (Cruz, International Law
(1998 Ed., pp. 172-174)

5. In our jurisdiction, for the treaty to be valid and effective, it must be concurred
in by the Senate. The process of treaty concurrence by the Senate follows the procedure
under the 1987 Constitution on the passage of bills. Such rules are supplemental by the
Rules of the Senate. The step-by-step process of treaty concurrence is discussed below.

Initially, the President, through a letter to the Senate, transmits to the Senate the
Instrument of Ratification and the text of the ratified treaty for concurrence pursuant to
Sec. 21, Art. VII of the Constitution. The President transmits the same by acting through
the Executive Secretary, who himself makes a letter of endorsement to the Senate.  (The
Senate Archives have a compilation of some of the documents and letters of
government officials and members of the Philippine Mission to the United Nations
(including those of then President Fidel Ramos, Executive Secretary Teofisto Guingona,
and Foreign Affairs Secretary Roberto Romulo) regarding the World Trade
Organization. This compilation is indexed as CP-Senate Res. No. 97 B9-F97 in the
Archives but it can be asked as documents pertaining to the WTO deliberations.)

The Senate receives the agreement through its Legislative Bills and Index Services (Bills
and Index). The Bills and Index reproduces the text of the agreement and includes it in
the Order of Business. It also indexes and publishes an abstract of the agreement.

At the beginning of each Senate Session, the Secretary of the Senate reports all bills,
proposed Senate resolutions, and correspondences from the other branches of the
government, and such other matters included in the Order of Business. Like an ordinary
bill, the international agreement undergoes three readings.

In the first reading, only the title and number is read . The title usually goes “Concurrence
in the Ratification of (the treaty or international agreement)” with the corresponding
Proposed Senate Resolution Number. (Rules of the Senate, Rule 36)

Afterwards, the treaty is referred to the Committee on Foreign Relations. If the treaty
concerns other Committees, it is also referred to such other Committees for their joint
consideration and recommendation. As an illustration, the Visiting Forces Agreement
(VFA) was also referred to the Committee on National Defense. If the treaty concerns
almost all or all the Senate Committees, it is referred to what is called the Committee of
the Whole. For instance, the World Trade Organization (WTO) was referred to the
Committee of the Whole. The role of the Committee is to study and analyze the
agreement. It makes consultations to studies and position papers. It conducts public
hearings and considers public testimonies. The final output and recommendations are
documented in the committee report. The committee report is filed with the Bills and
Index, which then includes it in the Calendar of Business for second reading.  (Interview
withe Eduardo Sibuma, supra.)

At the start of the second reading, the Senator-Sponsor/s of the treaty endorses the
committee report to the Chamber through a sponsorship speech. During the second
reading, the treaty would be opened to general debate and to amendments . At the close
of the debate, the members of the Senate would vote.

If approved by the Senate, the bill would pass to third reading. The Committee on
Foreign Relations will document any action taken in the form of a Proposed Resolution.
The Proposed Resolution shall be engrossed and printed by the Bills and Index, and
distributed to each Senator three (3) days before third reading. (Sec. 26(2), Art. VI of
the 1987 Constitution. Under the same provision, the requirements of three readings on
separate days and the distribution of the final copies of the bill before its passage may
be dispensed with by a certificate of urgency issued by the President for the purpose of
meeting a public calamity or emergency.)

After three days from the distribution of the resolution with the treaty attached thereto,
the Proposed Resolution shall be submitted for nominal voting. The treaty shall be
deemed approved if 2/3 of the Senators voted for its approval. A Senate Resolution
concurring in the ratification of the treaty is then adopted. The adopted Senate
Resolution is brought to the Secretary of the Senate, who thereafter transmits a copy
thereof to the Secretary of Foreign Affairs.

d. Opportunities/venues for private sector participation

Although the Chief Executive is the sole authority in treaty-making, it is nonetheless the
policy of the State that the people and their organizations have the right to participate in
decision-making processes. (Sec. 16, Art. XIII of the 1987 Constitution, “The right of
the people and their organizations to effective and reasonable participation at all
levels of social, political, and effective decision-making shall not be abridged. The
State shall, by law, facilitate the establishment of adequate consultation
mechanisms.”) Organizations refer to trade unions, peasant organizations, urban poor,
cooperatives, human rights groups, religious groups, and also associations of
landowners and businessmen. The role of the State, by enacting a law, would be “mere
facilitation” of the consultation mechanisms, and not their creation, for consultation
mechanisms were already operating without the State’s action by law. Also, “people”
refers to all the people, including minors. (Bernas, The Intent of the 1986 Constitution
Writers (1995), pp. 998-1004, citing II Record of the Constitutional Commission, p. 608
and III Record of the Constitutional Commission pp. 146-147, 162-163.)

Also, the people shall have the right to access to all transactions of the State that concern
public interest, subject to standards prescribed by law. (Sec. 28, Art. II of the 1987
Constitution, “Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest.”) During the deliberations of the Constitutional
Commission, Commissioner Blas Ople, the sponsor of Sec. 28 Art. II, said that
“transactions” include not just the perfected contract but also the steps and
negotiations taken that led to a contract. Commissioners Ople and Napoleon Rama
further explained that the difference between the provision under State Policies and
that under the Bill of Rights is that the latter affords the right of the people to demand
information while the former speaks of the duty of the government to disclose
information even when nobody demands. (Bernas, id, pp. 155-156, citing IV Record of
the Constitutional Commission, pp. 24-26, 29.)
It necessarily follows that in all negotiations made by the President as to entering into
international agreements, it is the duty of the government to disclose to the people,
even without the latter making a demand, all its acts, but always limited by conditions
prescribed by law.

The Supreme Court laid down in Chavez vs. Presidential Commission on Good
Government (299 SCRA 744, pp. 763-765.) some of the restrictions to the State policy of
public disclosure and to the exercise of the right to information: 1) National security
matters which include State secrets regarding military and intelligence information,
diplomatic matters, and information on inter-government exchanges prior to the
conclusion of treaties and executive agreements; 2) trade secrets pursuant to the
Intellectual Property Code; 3) banking transactions as provided by the Secrecy of Bank
Deposits Act; 4) criminal matters or classified law enforcement matters; and 5) other
confidential matters including diplomatic correspondence, closed door Cabinet
meetings, executive sessions of Congress, and internal deliberations of the Supreme
Court.

The right guaranteed by Section 7 of the Bill of Rights is the right to information on
matters of public concern. (Sec. 7, Art. III of the 1987 Constitution , “The right of the
people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts,
transactions or decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.”) A consequence of this right is the right to access official
records and documents. These rights are “subject to such limitations as may be
provided by law.” It follows that the limitations include regulations on determining
what information are matters of public concern, and the manner of access to such
matters of public concern.

In the case of Legaspi vs. Civil Service Commission,(150 SCRA 530 (1987) the Supreme
Court said that “public concern” has no exact definition. It encompasses an extensive
scope of subjects which the public may want to know, either because it directly affects
their lives or simply because it arouses his interest. Each case must be examined
carefully.

It was also held in the above case that the duty to disclose information of public concern
and to allow access to public records is not discretionary on the part of the concerned
government agency. If denied of the enjoyment of the Constitutional right, the remedy
of the citizen is to file a petition for mandamus to compel the performance of the
constitutional obligation.

Indeed, under Sec. 1 of Art. II (Declaration of Principles and State Policies) of the 1987
Constitution, “The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.”
Republicanism means all government authority emanates from the people and is
exercised by representatives chosen by the people. Hence, the people are declared
supreme.(Cruz, Philippine Political Law (2002 Ed.), pp.51-52.)

What is the significant role of the Legislative branch in the treaty-making

process?

Notwithstanding the sole authority of the President to negotiate and enter into treaties,
the 1987 Constitution limits his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity and effectivity of the treaty entered into by him.
(Sec. 21, Art. VII of the 1987 Constitution, “No treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate.”) The role of the Senate is confined to simply giving or
withholding its consent to the ratification.  (Isagani Cruz, International Law, 2000,
p.174)

The involvement of the Senate in the treaty-making process manifests the adherence of
the Philippine system of government to the principle of checks and balances. This
indispensable participation of the legislative branch by way of concurrence provides
the “check” to the ratification of the treaty by the executive branch.

What is the effect of Senate Concurrence to a treaty?

A treaty becomes valid and effective if concurred in by two-thirds of all the members of
the Senate. (Section 21, Article VII, 1987 Constitution.) This means it forms part of
Philippine law by virtue of transformation. By an act of the legislature, treaty rules may
be transformed into Philippine law, to be applied or enforced as part of Philippine
law. (Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law,
p. 49)

The treaty becomes part of the law of the land and it becomes obligatory and incumbent
on our part, under the principles of international law, to be bound by the terms of the
agreement. In Bayan vs. Zamora (G.R. No. 138570. October 10, 2000), the Supreme
Court said that with the ratification of the VFA, which is equivalent to final acceptance,
and with the exchange of notes between the Philippines and the United States of
America, it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than Section
2, Article II of the Constitution, (Sec. 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.) declares that
the Philippines adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally

accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we are responsible to assure
that our government, Constitution and laws will carry out our international obligation.
(Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases
and Materials, 2nd Ed American Casebook Series, p. 136.)

Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: “ Every State has the duty to carry
out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this duty.” (Gerhard von Glah, supra, p. 487.)

Equally important is Article 26 of the convention which provides that “Every treaty in
force is binding upon the parties to it and must be performed by them in good
faith.” This is known as the principle of pacta sunt servanda which preserves the
sanctity of treaties and have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international tribunals. (Harris, p.
634 cited in Coquia, International Law, supra, p. 512.)

What is the effect if the Senate does not concur to a treaty?

As provided for by the constitution, a treaty not concurred in by the Senate will not be
valid and effective. (Sec. 21, Art. VII of the 1987 Constitution)

Under the Philippine Legal System, how does a treaty stand in relation to the
Philippine Constitution?

The Constitution is the basis for ascertaining the legality or validity of the treaty. By
virtue of Article VIII, Section 5(2)(a) of the Constitution, the Supreme Court may
determine the constitutionality of a treaty or declare it as violative of a statute.(Merlin
M. Magallona, A Primer in International Law in Relation to Philippine Law, p.58)

How does a treaty stand in relation to a statute?

Being part of the law of the land and therefore an internal law, a treaty is not superior
to an enactment of the Congress of the Philippines, rather it would be in the same class
as the latter. (Abbas v. Commission on Elections (179 SCRA 287)

III. STATUTES ENACTED BY THE LEGISLATURE

In the Philippines, legislation is one of the three principal sources of our laws. The
other are court decisions or jurisprudence and custom.

A. Constitutional provision on the law-making power and process with Senate

and House of Representatives.

“SECTION 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with amendments.

SECTION 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.

(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and the yeas and nays entered
in the Journal.

SECTION 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it; otherwise, he shall
veto it and return the same with his objections to the House where it originated, which
shall enter the objections at large in its Journal and proceed to reconsider it. If, after
such reconsideration, two-thirds of all the Members of such House shall agree to pass
the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the Members voting for or against shall
be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had signed it.

(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to
which he does not object.”

The following is a SUMMARY of how a bill becomes a law:

a. Filing/Calendaring for First Reading

A bill is filed in the Office of the Secretary where it is given a corresponding number and
calendared for First Reading.

b. First Reading

Its title, bill number, and author’s name are read on the floor, after which it is referred
to the proper committee.

c. Committee Hearings/Report

Committee conducts hearings and consultation meetings. It then either approves the
proposed bill without an amendment, approves it with changes, or recommends
substitution or consolidation with similar bills filed.

d. Calendaring for Second Reading

The Committee Report with its approved bill version is submitted to the Committee on
Rules for calendaring for Second Reading.

e. Second Reading

Bill author delivers sponsorship speech on the floor. Senators engage in debate,
interpellation, turno en contra, and rebuttal to highlight the pros and cons of the bill. A
period of amendments incorporates necessary changes in the bill proposed by the
committee or introduced by the Senators themselves on the floor.

f. Voting on Second Reading

Senators vote on the second reading version of the bill. If approved, the bill is
calendared for third reading.

g. Voting on Third Reading

Printed copies of the bill’s final version are distributed to the Senators. This time, only
the title of the bill is read on the floor. Nominal voting is held. If passed, the approved
Senate bill is referred to the House of Representatives for concurrence.

h. At the House of Representatives

The Lower Chamber follows the same procedures (First Reading, Second Reading and
Third Reading).
i. Back to the Senate

If the House-approved version is compatible with that of the Senate’s, the final version’s
enrolled form is printed. If there are certain differences, a Bicameral Conference
Committee is called to reconcile conflicting provisions of both versions of the Senate
and of the House of Representatives. Conference committee submits report on the
reconciled version of the bill, duly approved by both chambers. The Senate prints the
reconciled version in its enrolled form.

j. Submission to Malacañang

Final enrolled form is submitted to Malacañ ang. The President either signs it into law,
or vetoes and sends it back to the Senate with veto message.

B. Ordinance making power by the LGU (including the barangay)

Ordinances are enacted similarly as national laws. Here are the STAGES:

1. Filing of bills/sponsorship – parts: Title / Preamble / Whereas / Principles or

Clause / Text / Substance and Date of Effectivity.

2. First Reading – reading of the title and number of bill then referred to the
appropriate committee

3. Committee Hearings – deliberations, approval with or without amendments,

substitution or consolidation, and preparation of committee report

4. Second Reading – period of debate (reading, sponsorship, interpellation), period of

amendments (committee and individual amendments), and approval

5. Third Reading – distribution in printed form, and approval / roll call / vote

Unlike that of congress, sanggunians can undertake the 3 reading procedure even in 1
day (Malonzo vs. Zamora, GR No. 137718, July 27, 1999).

Approval of Ordinance – every ordinance enacted by the sanggunian (except

barangay) shall be presented to the LCE for approval (Sec. 54, LGC)

3 ways by which an enacted ordinance can be considered an approved ordinance:

1. When the mayor or governor affix his signature;
2. When the mayor failed to act within the reglementary period for him to approve the
same;
3. By 2/3 vote to override the veto of the mayor.

Ordinances enacted by the Sangguniang Barangay shall (only ministerial per DILG
Opinion No. 52, series of 2009), upon approval by the majority of all its member, be
signed by the punong barangay.

Veto power of the LGE (Sec. 55, LGC)

1. Entire Veto – for ordinary ordinance – the mayor cannot veto any item but should
veto the ordinance in its entirety;
2. Item Veto – with respect to (a) appropriations ordinance, (b) resolutions which
approve local development plans and (c) resolution approving public investment
programs, item veto is applicable.
 --- the veto power is complete when the mayor communicated his written veto message
to the sanggunian coupled with the act of returning the proposed ordinance unsigned.

Grounds for the exercise of the veto power of the LGE:

1. Ordinance is ultra vires
2. Ordinance is prejudicial to the public welfare

SEC. 56. REVIEW of Component City and Municipal Ordinances or Resolutions

by the Sangguniang Panlalawigan. –

(a) Within three (3) days after approval, the secretary to the Sangguniang
Panlungsod or Sangguniang Bayan shall forward to the Sangguniang Panlalawigan
for review, copies of approved ordinances and the resolutions approving the local
development plans and public investment programs formulated by the local
development councils.

(b) Within thirty (30) days after receipt of copies of such ordinances and
resolutions, the Sangguniang Panlalawigan shall examine the documents or transmit
them to the provincial attorney, or if there be none, to the provincial prosecutor for
prompt examination. The provincial attorney or provincial prosecutor shall, within
a period of ten (10) days from receipt of the documents, inform the Sangguniang
Panlalawigan in writing his comments or recommendations, which may be
considered by the Sangguniang Panlalawigan in making its decision.

(c) If the Sangguniang Panlalawigan finds that such an ordinance or resolution is

beyond the power conferred upon the Sangguniang Panlungsod or Sangguniang
Bayan concerned, it shall declare such ordinance or resolution invalid in whole or in
part. The Sangguniang Panlalawigan shall enter its action in the minutes and shall
advise the corresponding city or municipal authorities of the action it has taken.

(d) If no action has been taken by the Sangguniang Panlalawigan within thirty (30)
days after submission of such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.

Review of Barangay Ordinance by the Sangguniang Panlungsod/Bayan:

a. Within 10 days after its enactment, the sangguniang barangay shall furnish copies of
the barangay ordinance to the Sangguniang panlungsod/bayan as to whether the
ordinance is consistent with law and city or municipal ordinance;
b. If found to be inconsistent with law and the ordinance, it shall be returned with
comments and recommendation to the sangguniang barangay for adjustment,
amendment or modifications. Until then, the barangay ordinance is suspended until
the revision call for is effected;
c. If inacted by the sangguniang panlungsod/bayan within 30 days from receipt, the
same shall be deemed approved.

xxx xxx

Art. 3 (Civil Code) – Ignorance of the law excuses no one from compliance
therewith.

Rationale: everyone is conclusively presumed to know the law. When a law is passed
by congress, duly approved by the president, properly published and consequently
becomes effective, the public is always put on constructive notice of the law’s existence
and effectivity.

This policy is founded not only on expediency and public policy but also on necessity;
otherwise a convenient shelter (immunity) from punitive effects of a disregard of the
law would be made easily available – instead of punishment, ignorance is rewarded.
(Zulueta vs. Zulueta, 1 Phil 258; Consunji vs. CA GR 137873 4/20/01)

Applicability of the Maxim. Art. 3 Applies to all domestic laws and not to foreign
laws. (Luna vs. Linatoc 74 Phil 15; Zulueta vs. Zulueta 1 Phil 258).

Thus, ignorance of a foreign law will not be an ignorance of law but an ignorance of fact.
Foreign laws must be alleged and proved as a matter of fact, there being no judicial
notice of foreign law.

Cases:
(1) Thus, a marriage in China celebrated before a village leader therein cannot be
recognized as valid in the Philippines, unless there is a proof that indeed in China and
according to Chinese laws such marriage is valid. Without such proof, we will assume
that the law on marriage in China is the same as the law in the Philippines (processual
presumption), and in the Philippines, it is well-known that a village leader cannot
perform a marriage. (Wong Woo Yiu, L-21076, 3/31/65)

(2) The deceased Hodges was a citizen of Texas but a domiciliary of the
Philippines. A claim was made by the administrator (PCIB) of his estate that under
Texas law successional rights to the estate of the deceased would be governed by the
law of the domicile. HELD: Before Texas Law should be applied in the instant case, it
must be alleged and proved as a matter of fact, there being no judicial notice of foreign
law. (Phil. Commercial and Industrial Bank vs. Escolin 56 SCRA 266)

-- {Written foreign law can be proved in our courts by an official publication thereof or a
copy attested by the officer or his deputy having legal custody of the record. Rule 132
Sec.25}

Honest Error of the law not a ground for disbarment. No attorney is bound to know
all the law; God forbid that it should be imagined that an attorney or even a judge is
bound to know all the law. (Filart 40 Phil. 205)

Mistake of fact. Ignorance of fact may excuse a party from legal consequences of his
conduct. Ex. A man who marries a second wife upon the reasonable belief that his first
wife missing for 10 years, is dead, does not incur criminal liability for bigamy. (U.S. vs.
Enriquez, 32 Phil. 202; see however Art 41 of the FC)

Difficult questions of law. (Has been given the same effect as a mistake of fact.). Art
526 “He is deemed a possessor in good faith who is not aware that there exists in his
title or mode of acquisition any flaw which invalidates it. xxx MISTAKE upon a doubtful
or difficult question of law may be a basis of good faith.”

Basis of good faith – This does not mean, however, that one is excused because of such
ignorance. He is still liable but his liability is mitigated by reason of good faith.

It has been held that one who possesses land by virtue of a void contract can
nevertheless be considered a possessor on good faith. (Kasilag vs. Rodriguez 69 Phil
217)
IV. JURISPRUDENCE

Art. 8 (Civil Code) – Judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines.

Judicial Decision. – although in themselves are not law, assume the same authority as
the statute itself. Judicial interpretation/application merely establish the
contemporaneous legislative intent that the construed law purports to carry into effect.
(Peo vs. Licera 65 SCRA 270)

(a) The decision referred to are those enunciated by the SC, which is the court of final
resort. However, the rulings of the CA may serve as precedents for inferior courts on
points of law (“still undecided in our jurisprudence) not covered by the SC decision,
and a ruling of the CA may become a doctrine. (Miranda vs. Imperial 77 Phil 1066).

(b) Obiter dicta/dictum – opinions not necessary to the determination of a case “uttered
in a way, not upon the point of question pending” where the “court were turning aside
from the main topic of the case to collateral subjects.” (People vs. Macaraeg L-4316
5/28/52; Navarro vs. Domagtoy 259 Scra 129)

Navarro vs. Domagtoy 259 SCRA 129. Administrative case was filed against a judge
who solemnized OUTSIDE his court’s jurisdiction. According to the SC, there is only
a resultant irregularity in the formal requisites. – This statement is erroneous
because it generally makes the marriage null and void. It is submitted, however, that
since the principal issue in the Domagtoy case involves administrative liability of the
judge and not the validity of a marriage, the said statement of the SC is a mere obiter
dictum and therefore does not create a precedent.

(c) Dissenting opinion – affirms or overrules no claim, right or obligation. It does not
dispose of nor award anything. Merely an expression of view. (Tolentino vs. Ongsiako
L-17938, 4/30/63)

Stare Decisis.

a. “Adherence to judicial precedents” – once a case has been decided one way, then
another case, involving exactly the same point at issue, should be decided in the
same manner. This doctrine is based on the principle that once a question of law
has been examined and decided, it should be deemed settled and closed to further
argument.

b. However, this principle does not mean blind adherence to precedents. The doctrine
or rule laid down, which has been followed for years, no matter how sound it may
be, if found contrary to law, must be abandoned. (Tan Chong vs. Sec of Labor 79 Phil
249); and particularly it is not wise to subordinate legal reason to case law and by so
doing perpetuate error. (Phil Trust Co. vs, Mitchell 59 Phil 30; Phil Veterans Office
vs. Segundo, 164 SCRA 365) Ex. “the old rule that a deaf mute was presumed to be
an idiot no longer prevails; such persons are now considered as capable of entering
into a contract is shown to have sufficient mental capacity.” (Dir. of Lands vs.
Abelardo 54 Phil 687)

Art. 4 (Civil Code) – Laws shall have no retroactive effect unless the contrary is
provided.

Retroactive law. – one which takes away or impairs vested right acquired under
existing laws, or creates a new obligation and imposes new duties or attaches new
 disability in respect to transaction or consideration already past. (Castro vs. Sagales
94 Phil 208)

Not applicable to Case Law especially when prejudice will result to the party that
has followed the earlier SC decision (See Tan Chong vs. Sec. of Labor 79 Phil 249;
Peo. vs. Licera 65 SCRA 270; Gold Creek Mining Corp. vs. Rodriguez 66 Phil 259)

Apiag vs. Cantero 268 SCRA 47, Judge Cantero was charged administratively of
immorality, among others, for entering into a second marriage without having the
first marriage judicially declared nullity (void on the ground of “drama marriage”
when he was still young) HELD: The 2 nd marriage cannot be a basis for
administrative liability against J. Cantero for immorality, because at the time of the
2nd marriage of the judge, the prevailing jurisprudence was that judicial declaration
of nullity is not needed in void marriages. The subsequent marriage of the judge
was solemnized just before the SC decided Wiegel vs. Sempio Diy 143 SCRA 499
declaring that there was a need for a judicial declaration of nullity of void marriage.

Art. 9 (Civil Code) – No judge or court shall decline to render judgment by reason
of the silence, obscurity or insufficiency of laws.

Courts are governed: (1st) by written law; (2 nd) customs of the place; (3rd) judicial
decisions; (4th) by general principles of law (Manresa).

The court must decide the question, not in accordance with law for there is none, but in
conformity with justice, reason and equity, in view of the circumstances of the case.
(Gregorio Araneta vs. Rodas 81 Phil 806)

“do and must legislate” In the absence of the law, the judge must always be guided by
equity, fairness and a sense of justice. Art 9 recognizes that in certain instances, the
court in the language of J. Holmes, “do and must legislate” in filling the gaps in the law;
because the mind of the legislator, like all human beings is finite and therefore cannot
envisage all possible cases to which the law may apply (Floresca vs. Philex Mining Corp.
136 SCRA 136)

-- and for illustration; see Republic vs. Orbecido GR 154380 10/5/05, where the SC in
effect legislated on Art 26 par. 2 FC) – In 1981, Cipriano Orbecido married Lady Myros
Villanueva. In 1986, Lady went to the US. Later Cipriano learned that she has been
naturalized as a US citizen, obtained a divorce decree, married one Innocent Stanley.
Cipriano then filed a petition for authority to remarry. SC granted the petition.

Art. 26. All marriages (a) Solemnized Outside The Philippines, (b) in accordance
with the laws in force in the country where they were solemnized, and (c) valid
there as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36 37 and 38. (17a)

Where a marriage between a (a) Filipino citizen and a foreigner is validly celebrated
(b) and a divorce is thereafter validly obtained abroad BY THE ALIEN SPOUSE
capacitating him or her to remarry, --- the FILIPINO SPOUSE shall have capacity to
remarry under Philippine law. (As amended by Executive Order 227)

HELD: The intent of par. 2 Art 26 is to avoid the absurd situation where the Filipino
remains married to an alien spouse, who after obtaining a divorce, is longer married
to the Filipino spouse. Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Par. 2 Art 26 should be interpreted to
include cases involving parties who, at the time of the celebration of the
 marriage were Filipino citizens, but later on, one of them becomes naturalized
as a foreign citizen and obtains a divorce decree. The Filipino spouse should
likewise be allowed to remarry AS IF the other party were a foreigner at the time of
the solemnization of the marriage. To rule otherwise would be to sanction absurdity
and injustice. The reckoning point is not the citizenship of the parties at the time of
the celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to marry.

Customs.
1. Requisites: Plurality of acts; Uniformity of acts; General practice by great mass of the
social group; Continued performance; General conviction that the acts are obligatory or
corresponds to necessity; and, Must not be contrary to law, public order or policy.
2. A judge cannot dismiss a case requiring decision as to who was the winner in a
cockfight solely because he is not acquainted with the rules of cockfighting. He should
apply the customs of the place, or in default thereof, general principle of law. (Chu Jan
vs. Bernas 34 Phil 631)

Equity.
(a) (Alonzo vs. Padua 150 SCRA 259) Defined as being justice according to natural law
and right. Aptly, the real office of equity is to correct deficiency of, and to supplement,
positive law growing as it does, out of necessity.

(b) Ex. Hermanos vs. Saldana 55 SCRA 342. In two separate contracts for the sale of two
lots in a subdivision to the same buyer, who defaulted in both contracts but where the
total payment could cover one lot, the seller was ordered to execute one absolute deed
of sale to cover one lot.

Art. 11 (Civil Code) – Customs which are contrary to law, public order, or public
policy shall not be countenanced.

Art. 12 (Civil Code) – Customs must be proved as fact, according to the rules of
evidence.