MODULE 1 - TOPIC 2
Legal System
5.1. Nature of the Philippine Legal System
The Philippine legal system may be considered as a unique legal system
because it is a blend of civil law (Roman), common law (Anglo-American),
Muslim (Islamic) law and indigenous law. Like other legal systems, there are
two main sources of law.
5.2. Sources of Law
There are two primary sources of the law: statutes and jurisprudence.
Statutes or Statutory Law: Statutes are defined as the written enactment of
the will of the legislative branch of the government rendered authentic by
certain prescribed forms or solemnities are more also known as enactment of
congress. Generally, they consist of two types, the Constitution and legislative
enactments. In the Philippines, statutory law includes constitutions, treaties,
statutes proper or legislative enactments, municipal charters, municipal
legislation, court rules, administrative rules and orders, legislative rules and
issuance of government agencies including government-controlled
corporations.
Jurisprudence or Case Law: Cases decided or written opinions by courts
and by persons performing judicial functions. Also included are all rulings in
administrative and legislative tribunals such as decisions made by the
Presidential or Senate or House Electoral Tribunals. Only decisions of the
House of Representatives Electoral Tribunal are available in print as House of
Representatives Electoral Tribunal Reports, volume 1 (January 28, 1988-
October 3, 1990) to present.
For Muslim law, the primary sources of Shariah are Quran, Sunnah,
Ijma and Qiyas. Jainal D. Razul in his book Commentaries and Jurisprudence
on the Muslin Law of the Philippines (1984) further stated there are new
sources of Muslim law, which some jurists rejected such as Istihsan or juristic
preference; Al-Masalih, Al Mursalah or public interest; Istidlal (custom)
and Istishab. (deduction based on continuity or permanence).
Classification of Legal Sources by Authorities: “Authority is that which
may be cited in support of an action, theory or hypothesis.” Primary Authority
is the only authority that is binding on the courts. These are the two sources of
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.
law, which includes the Constitution, legislative statutes or those passed by
Congress, decisions of the Supreme Court, appellate courts, lower courts and
other quasi-judicial agencies, Executive issuances or Presidential issuances,
treaties entered into by the Philippines, ordinances, rules and regulations of
government agencies. They are the actual law or those promulgated by the
three branches of government: Legislative, Executive and Judiciary.
The legislature promulgates statutes, namely: Acts, Commonwealth Acts,
Republic Acts, and Batas Pambansa. The Executive promulgates presidential
issuances (Presidential Decrees, Executive Orders, Memorandum Circular,
Administrative Orders, Proclamations, etc.), rules and regulations through its
various departments, bureaus and agencies. The Judiciary promulgates judicial
doctrines embodied in decisions.
We however need to clarify that the Presidential Decrees or law issued by
President Ferdinand E. Marcos during Martial Law and Executive Orders
issued by Aquino President Corazon C. Aquino before the opening Congress in
July 1987 can be classified as legislative-executive acts, there being no
legislature during these two periods.
Primary Authority or sources may be further subdivided into the following:
• Mandatory primary authority is law created by the jurisdiction in which
the law operates like the Philippines;
• Persuasive mandatory authority is law created by other jurisdictions, but
which have persuasive value to our courts e.g. Spanish and American
laws and jurisprudence. These sources as used specially when there are
no Philippine authorities available or when the Philippine statute or
jurisprudence under interpretation is based on either the Spanish or
American law.
It is in this regard that the collections of law libraries in the Philippines include
United States court reports, West’s national reporter system, court reports of
England and international tribunal, important reference materials such as
the American Jurisprudence, Corpus Juris Secundum, Words and Phrases and
different law dictionaries. Some of these law libraries subscribe to the Westlaw
and/or LexisNexis. The Supreme Court, University of the Philippines,
University of Santo Tomas and a number of prominent law libraries also have a
Spanish collection where a great number of our laws originated.
Secondary authority or sources are commentaries or books, treatise, writings,
journal articles that explain, discuss or comment on primary authorities. Also
included in this category are the opinions of the Department of Justice,
Securities and Exchange Commission or circulars of the Bangko Sentral ng
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.
Pilipinas. These materials are not binding on courts, but they have persuasive
effect and/or the degree of persuasiveness. With regards to commentaries or
books, treatise, writings, journal articles, the reputation or expertise of the
author is a consideration. Some of the authors of good reputation and
considered experts in the field are Chief Justice Ramon C. Aquino and Justice
Carolina Grino Aquino on Revised Penal Code or Criminal Law, Senator Arturo
M. Tolentino on Civil law, Chief Justice Enrique M. Fernando and Fr. Joaquin
Bernas on Constitutional Law, Prof. Perfecto Fernandez on Labor Law, Vicente
Francisco, Chief Justice Manuel Moran on Remedial Law, and Justice Vicente
Abad Santos and Senator Jovito Salonga on International Law, etc. A list of
these materials by subject are found in GlobaLex - Part 2: Philippine Legal
Information Resources and Citations - A. v Treatise/Annotations/
Commentaries, etc.
Classification of Legal Sources by Source: It is important for legal
research experts to know the source where the materials were taken from. One
has to determine whether they came from primary (official) sources or
secondary (unofficial sources). Primary and secondary sources for the sources
of law are found in Part 2: Philippine Legal Information Resources and
Citations - A. v Treatise/Annotations/Commentaries, etc.
Primary sources are those published by the issuing agency itself or the official
repository, the Official Gazette. The Official Gazette online (copy and paste the
URL into the browser) was launched by the Office of the President in July
2010. This online version is maintained and managed by the Presidential
Communications Development and Strategic Management [Link], for
Republic Acts and other legislative enactments or statutes, the primary sources
are the Official Gazette published by the National Printing Office and the Laws
and Resolutions published by Congress. For Supreme Court decisions, the
primary sources are the Philippine Reports, the individually mimeographed
Advance Supreme Court decisions and the Official Gazette. Publication of
Supreme Court decisions in the Official Gazette is selective. The publication of
the Philippine Reports by the National Printing Office ceased in 1960s. It was
only in 1983 when the publication of the Philippine Reports was revived by
then Chief Justice Enrique M. Fernando who requested then President
Ferdinand E. Marcos to take charge of its publication with special
appropriation in the Judiciary’s annual budget. However, when the Supreme
Court took over the printing in 1983, the delay in printing covered more than
twenty (20) years. The last volume printed was volume 126 (June 1967).
The Philippine Reports is up-to-date and almost complete from 1901. The
volumes are to be printed cover June 1991-December 1994. Online, the
Supreme Court E-Library is complete and updated as soon as the decisions
have been certified by the Chief Justice. The Supreme Court E-Library includes
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.
the citation of the Philippine Reports where each case is found whenever it is
available.
The Secondary Sources are the unofficial sources and generally referred to as
those commercially or institutionally published in print or online.
With the advent of the new information technology, electronic or digitized
sources are popular sources and effective sources of legal information for the
following reasons: a) no complete and updated legal information available; b)
the search engines utilizing the electronic or digitized method facilitate
research, and c) no complete and update manually published search tools for
statute and case law. These electronic sources started with CD ROMS and now
online or electronic libraries.
Official or government online source for full text for all legal sources and
related materials in the Official Gazette online (copy and past the URL into the
browser), launched in July 2010. It contains the issuances of all the executive
departments, which are found also in the websites of the different executive
departments. They aim (as reflected in their website) to include the issuances
of the legislative and the judiciary. The Supreme Court E-Library is an
electronic library (online and CD Rom for decisions updated quarterly) for all
Philippine legal information, case law and statute law. Access however is
limited to the Justices, judges and court attorneys of the Supreme Court and
law schools (by request) through their law librarians. Decisions and issuances
of the Supreme Court and its Offices and the Appellate Courts are found in
the Judiciary portal.
CD Asia online contains full texts of Supreme Court decisions and statutes,
available on a subscription basis. It has a powerful search engine which
facilitates legal research of all the Philippine legal information. It is the source
for compilation of legal information which are not available in print. Central
Books eSCRA and MyLegalWhiz are other online sources for access to
jurisprudence.
The established policy is that in case of conflict between the printed and
electronic sources, the printed version coming from the issuing government
agency prevails.
Legal research for statute law in the Philippines benefited remarkably from the
use of the latest technology due to two major problems: a) no complete and
updated published or printed search tools or law finders for statute law and b)
no complete compilation of statute law from 1901-present were available.
Problems of the publication of compilations of statute law or the existence of
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.
the full-text of Presidential Decrees was that brought about to the Supreme
Court in the Tanada v. Tuvera, G.R. No. 63915, April 24, 1985 (220 Phil 422),
December 29, 1986 (146 SCRA 446) case was resolved by the use of the latest
technology. The Tanada v. Tuvera, case that was first decided before the
bloodless revolution popularly known as People Power or the EDSA Revolution
and modified in the December 29, 1986 or after the People Power or the EDSA
Revolution resolved the publication requirement for the effectivity of laws as
provided for in Section 2 of the Civil Code of the Philippines. This was resolved
by Executive Order No. 200, s. 1987 that provides that laws become effective
fifteen (15) days after publication in the Official Gazette or in two newspapers
of general circulation.
Still, to be resolved is how to classify sources published in the newspapers.
With Executive Order No. 200, s. 1987, these resources as primary and
secondary source. However, in case of conflict between those published in the
newspapers and the Official Gazette, the rule is following the Official Gazette.
The existence, availability and access to local ordinances issued by the local
governments in the Philippines remains a problem for the City of Manila is the
one with a compilation. However, all government agencies have started to use
the latest technology in their operations and some of them are available online.
In finding the law, our ultimate goal is to locate mandatory primary authorities,
which have bearing on the legal problem at hand. If these authorities are scarce
or nonexistent, our next alternative is to find any relevant persuasive
mandatory authority. If our search is still negative, the next alternative might
be secondary authorities. There are however instances where the secondary
authorities, more particularly the commentaries made by experts of the field,
take precedence over the persuasive mandatory authorities. With the
availability of both, using both sources is highly recommended.
Classification of Legal Sources by Character: This refers to the nature of
the subject treated in books. This classification categorizes books as: a) Statute
Law Books, b) Case Law Books or Law Reports, c) a combination of both and d)
“Law Finders.”
Law Finders refer to indexes, citators, encyclopedias, legal dictionaries,
thesauri or digests. A major problem in the Philippines is that there are no up-
to-date Law Finders. Federico Moreno’s Philippine Law Dictionary, the only
available Philippine law dictionary was last published in 1988, and, Jose
Agaton Sibal’s Philippine Legal Thesaurus, which is likewise considered a
dictionary, was published in 1986. Foreign law dictionaries like Blacks’ Law
Dictionary, Words and Phrases are used as alternate. To search for legal
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.
information, legal researchers go online virtual libraries such as the Supreme
Court E-Library, Chan Robles Virtual Library, Arellano’s lawphil, CD Asia
online and the different databases in CD-ROM format from CD Asia
Technologies Asia Inc. The databases developed by CD Asia include not only
the compilation of Laws (statutes) and Jurisprudence, but also include a
compilation of legal information that are not available in printed form such as
Opinions of the Department of Justice, Securities and Exchange Commission
and Bangko Sentral (Central Bank) rules and regulations. Search engines used
in these databases answer for the lack of complete and updated indexes of legal
information. In this regard, effective legal research can be conducted with one
cardinal rule in mind: "ALWAYS START FROM THE LATEST." The exception
to this is when the research has defined or has provided a SPECIFIC period.
Source: Ong, Milagros S., Legal Research and Citations of the Philippines. 2013 Ed.