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x x.
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 Code”,
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 to…stultify
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.” 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.”
Dean
Pacifico Agabin delves deeper and traces the roots of the Philippine Civil Code
from Romano-Germanic elements, “to which were added the concepts and principles
of equity in England and of torts in America.” 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.” 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 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.”
In
Estrada v. Escritor,
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 functions
and the friars exercised civil powers. Catholics
alone enjoyed the right of 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 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.” 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.” 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.” 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.
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
Anglo-American 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 System”, 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.”
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
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.”
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. helped 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.” 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 country”.
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. 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.”
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 nation’s indigenous heritages and the rights and
aspirations of its impoverished majority.”
X x x.”
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