KATARUNGANG PAMBARANGAY (1)

7/25/2019 KATARUNGANG PAMBARANGAY (1)

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CIRCULAR NO. 14-93 July 15, 1993

TO: ALL REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS,

MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS

SUBJECT: GUIDELINES ON THE KATARUNGANG PAMBARANGAY

CONCILIATION PROCEDURE TO PREVENT CIRCUMVENTION OF THE

REVISED KATARUNGANG PAMBARANGAY LAW (SECTIONS 399-422,

CHAPTER VII, TITLE I, BOOK III, R.A. 7160. OTHERWISE KNOWN AS THE

LOCAL GOVERNMENT CODE OF 1991).

The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise

known as the local Government Code of 1991, effective on January 1, 1992, and

which repealed P.D. 1508, introduced substantial changes not only in the

authority granted to the Lupong Tagapamayapa but also in the procedure to

be observed in the settlement of disputes within the authority of the Lupon.

In order that the laudable purpose of the law may not be subverted and its

effectiveness undermined by indiscriminate, improper and/or premature

issuance of certifications to file actions in court by the Lupon or Pangkat

Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the

following guidelines are hereby issued for the information of trial court judges

in cases brought before them coming from the Barangays:

I. All disputes are subject to Barangay conciliation pursuant to the Revised

Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now

replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I,

Book IV, R.A. 7160, otherwise known as the Local Government Code of 1991),

and prior recourse thereto is a pre-condition before filing a complaint in court

or any government offices, except in the following disputes:

1. Where one party is the government, or any subdivision or instrumentality

thereof;

2. Where one party is a public officer or employee, and the dispute relates to

the performance of his official functions;

3. Where the dispute involves real properties located in different cities and

municipalities, unless the parties thereto agree to submit their difference to

amicable settlement by an appropriate Lupon;

4. Any complaint by or against corporations, partnership or juridical entities,

since only individuals shall be parties to Barangay conciliation proceedings

either as complainants or respondents (Sec. 1, Rule VI, Katarungang

Pambarangay Rules);

5. Disputes involving parties who actually reside in barangays of different

cities or municipalities, except where such barangay units adjoin each other

and the parties thereto agree to submit their differences to amicable

settlement by an appropriate Lupon;

6. Offenses for which the law prescribes a maximum penalty of imprisonment

exceeding one (1) year or a fine over five thousand pesos (P5,000.00);

7. Offenses where there is no private offended party;


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8. Disputes where urgent legal action is necessary to prevent injustice from

being committed or further continued, specifically the following:

a. Criminal cases where accused is under police custody or detention (see Sec.

412 (b) (1), Revised Katarungang Pambarangay Law);

b. Petitions for habeas corpus by a person illegally deprived of his rightful

custody over another or a person illegally deprived or on acting in his behalf;

c. Actions coupled with provisional remedies such as preliminary injunction,

attachment, delivery of personal property and support during the pendency

of the action; and

d. Actions which may be barred by the Statute of Limitations.

9. Any class of disputes which the President may determine in the interest of

justice or upon the recommendation of the Secretary of Justice;

10. Where the dispute arises from the Comprehensive Agrarian Reform Law

(CARL) (Sec. 46 & 47, R.A. 6657);

11. Labor disputes or controversies arising from employer-employee relations

(Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended,

which grants original and exclusive jurisdiction over conciliation and

mediation of disputes, grievances or problems to certain offices of the

Department of Labor and Employment);

12. Actions to annul judgment upon a compromise which may be filed directly

in court (See Sanchez vs. Tupaz, 158 SCRA 459).

II. Under the provisions of R.A. 7160 on Katarungang Pambarangay

conciliation, as implemented by the Katarungang Pambarangay Rules and

Regulations promulgated by the Secretary of Justice, the certification for filing

a complaint in court or any government office shall be issued by Barangay

authorities only upon compliance with the following requirements:

1. Issued by the Lupon Secretary and attested by the Lupon Chairman

(Punong Barangay), certifying that a confrontation of the parties has taken

place and that a conciliation settlement has been reached, but the same has

been subsequently repudiated (Sec. 412, Revised Katarungang Pambarangay

Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);

2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman,

certifying that:

a. a confrontation of the parties took place but no conciliation/settlement has

been reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or

b. that no personal confrontation took place before the Pangkat through no

fault of the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).

3. Issued by the Punong Barangay, as requested by the proper party on the

ground of failure of settlement where the dispute involves members of the

same indigenous cultural community, which shall be settled in accordance

with the customs and traditions of that particular cultural community, or

where one or more of the parties to the aforesaid dispute belong to the

minority and the parties mutually agreed to submit their dispute to the

indigenous system of amicable settlement, and there has been no settlement


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as certified by the datu or tribal leader or elder to the Punong Barangay of

place of settlement (Secs. 1,4 & 5, Rule IX, Katarungang Pambarangay Rules);

and

4. If mediation or conciliation efforts before the Punong Barangay proved

unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b],

Revised Katarungang Pambarangay Law; Sec. 1, c. (1), Rule III, Katarungang

Pambarangay Rules), or where the respondent fails to appear at the

mediation proceeding before the Punong Barangay (3rd par. Sec. 8, a, Rule VI,

Katarungang Pambarangay Rules), the Punong Barangay shall not cause the

issuance at this stage of a certification to file action, because it is now

mandatory for him to constitute the Pangkat before whom mediation,

conciliation, or arbitration proceedings shall be held.

III. All complaints and/or informations filed or raffled to your sala/branch of

the Regional Trial Court shall be carefully read and scrutinized to determine if

there has been compliance with prior Barangay conciliation procedure under

the Revised Katarungang Pambarangay Law and its Implementing Rules and

Regulations, as a pre-condition to judicial action, particularly whether the

certification to file action attached to the records of the case comply with the

requirements hereinabove enumerated in par. II;

IV. A case filed in court without compliance with prior Barangay conciliation

which is a pre-condition for formal adjudication (Sec. 412 [a] of the Revised

Katarungang Pambarangay Law) may be dismissed upon motion of

defendant/s, not for lack of jurisdiction of the court but for failure to state a

cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs.

CA, 151 SCRA 289), or the court may suspend proceedings upon petition of

any party under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu

proprio to the appropriate Barangay authority, applying by analogy Sec. 408

[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads as

follows:

The court in which non-criminal cases not falling within the authority of the

Lupon under this Code are filed may at any time before trial, motu

proprio refer case to the Lupon concerned for amicable settlement.

Strict observance of these guidelines is enjoined. This Administrative Circular

shall be effective immediately.

Manila, Philippines. July 15, 1993.

(Sgd.) ANDRES R. NARVASA

Chief Justice

The Lawphil Project - Arellano Law

CHAPTER 7 - KATARUNGANG PAMBARANGAY

SEC. 399. Lupong Tagapamayapa. - (a) There is hereby created in each

barangay a lupong tagapamayapa, hereinafter referred to as the lupon,

composed of the punong barangay as chairman and ten (10) to twenty (20)

members. The lupon shall be constituted every three (3) years in the manner

provided herein.


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(b) Any person actually residing or working in the barangay, not otherwise

expressly disqualified by law, and possessing integrity, impartiality,

independence of mind, sense of fairness, and reputation for probity, may be

appointed a member of the lupon.cralaw

(c) A notice to constitute the lupon, which shall include the names of

proposed members who have expressed their willingness to serve, shall be

prepared by the punong barangay within the first fifteen (15) days from the

start of his term of office. Such notice shall be posted in three (3) conspicuous

places in the barangay continuously for a period of not less than three (3)

weeks;

(d) The punong barangay, taking into consideration any opposition to the

proposed appointment or any recommendations for appointments as may

have been made within the period of posting, shall within ten (10) days

thereafter, appoint as members those whom he determines to be suitable

therefor. Appointments shall be in writing, signed by the punong barangay,

and attested to by the barangay secretary.cralaw

(e) The list of appointed members shall be posted in three (3) conspicuous

places in the barangay for the entire duration of their term of office;

and cralaw

(f) In barangays where majority of the inhabitants are members of indigenous

cultural communities, local systems of es through their councils of datus or

elders shall be recognized without prejudice to the applicable provisions of

this Code.cralaw

SEC. 400. Oath and Term of Office. - Upon appointment, each lupon member

shall take an oath of office before the punong barangay. He shall hold office

until a new lupon is constituted on the third year following his appointment

unless sooner terminated by resignation, transfer of residence or place of

work, or withdrawal of appointment by the punong barangay with the

concurrence of the majority of all the members of the lupon.cralaw

SEC. 401. Vacancies. - Should a vacancy occur in the lupon for any cause, the

punong barangay shall immediately appoint a qualified person who shall hold

office only for the unexpired portion of the term.cralaw

SEC. 402. Functions of the Lupon. - The lupon shall: (a) Exercise administrative

supervision over the conciliation panels provided herein;

(b) Meet regularly once a month to provide a forum for exchange of ideas

among its members and the public on matters relevant to the amicable

settlement of disputes, and to enable various conciliation panel members to

share with one another their observations and experiences in effecting speedy

resolution of disputes; and cralaw

(c) Exercise such other powers and perform such other duties and functions as

may be prescribed by law or ordinance.cralaw

SEC. 403. Secretary of the Lupon. - The barangay secretary shall concurrently

serve as the secretary of the lupon. He shall record the results of mediation

proceedings before the punong barangay and shall submit a report thereon

to the proper city or municipal courts. He shall also receive and keep the


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records of proceedings submitted to him by the various conciliation

panels.cralaw

SEC. 404. Pangkat ng Tagapagkasundo. - (a) There shall be constituted for

each dispute brought before the lupon a conciliation panel to be known asthe pangkat ng tagapagkasundo, hereinafter referred to as the pangkat,

consisting of three (3) members who shall be chosen by the parties to the

dispute from the list of members of the lupon. Should the parties fail to agree

on the pangkat membership, the same shall be determined by lots drawn by

the lupon chairman.cralaw

(b) The three (3) members constituting the pangkat shall elect from among

themselves the chairman and the secretary. The secretary shall prepare the

minutes of the pangkat proceedings and submit a copy duly attested to by

the chairman to the lupon secretary and to the proper city or municipal court.

He shall issue and cause to be served notices to the parties concerned. The

lupon secretary shall issue certified true copies of any public record in his

custody that is not by law otherwise declared confidential.cralaw

SEC. 405. Vacancies in the Pangkat. - Any vacancy in the pangkat shall be

chosen by the parties to the dispute from among the other lupon members.

Should the parties fail to agree on a common choice, the vacancy shall be

filled by lot to be drawn by the lupon chairman.cralaw

SEC. 406. Character of Office and Service of Lupon Members. - (a) The lupon

members, while in the performance of their official duties or on the occasion

thereof, shall be deemed as persons in authority, as defined in the Revised

Penal Code.cralaw

(b) The lupon or pangkat members shall serve without compensation, except

as provided for in Section 393 and without prejudice to incentives as providedfor in this Section and in Book IV of this Code. The Department of the Interior

and Local Government shall provide for a system of granting economic or

other incentives to the lupon or pangkat members who adequately

demonstrate the ability to judiciously and expeditiously resolve cases referred

to them. While in the performance of their duties, the lupon or pangkat

members, whether in public or private employment, shall be deemed to be on

official time, and shall not suffer from any diminution in compensation or

allowance from said employment by reason thereof.cralaw

SEC. 407. Legal Advice on Matters Involving Questions of Law. - The

provincial, city legal officer or prosecutor or the municipal legal officer shall

render legal advice on matters involving questions of law to the punong

barangay or any lupon or pangkat member whenever necessary in the

exercise of his functions in the administration of the katarungang

pambarangay.cralaw

SEC. 408. Subject Matter for Amicable Settlement; Exception Thereto. - The

lupon of each barangay shall have authority to bring together the parties

actually residing in the same city or municipality for amicable settlement of all

disputes except:chanrobles virtual law library


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(a) Where one party is the government, or any subdivision or instrumentality

thereof;

(b) Where one party is a public officer or employee, and the dispute relates to

the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine

exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or

municipalities unless the parties thereto agree to submit their differences to

amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of different

cities or municipalities, except where such barangay units adjoin each other

and the parties thereto agree to submit their differences to amicable

settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine in the

interest of justice or upon the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the

lupon under this Code are filed may, at any time before trial, motu proprio

refer the case to the lupon concerned for amicable settlement.cralaw

SEC. 409. Venue. - (a) Disputes between persons actually residing in the same

barangay shall be brought for amicable settlement before the lupon of said

barangay.

(b) Those involving actual residents of different barangays within the same city

or municipality shall be brought in the barangay where the respondent or any

of the respondents actually resides, at the election of the complainant.cralaw

(c) All disputes involving real property or any interest therein shall be broughtin the barangay where the real property or the larger portion thereof is

situated.

(d) Those arising at the workplace where the contending parties are employed

or at the institution where such parties are enrolled for study, shall be brought

in the barangay where such workplace or institution is located. Objections to

venue shall be raised in the mediation proceedings before the punong

barangay; otherwise, the same shall be deemed waived. Any legal question

which may confront the punong barangay in resolving objections to venue

herein referred to may be submitted to the Secretary of Justice, or his duly

designated representative, whose ruling thereon shall be binding.

SEC. 410. Procedure for Amicable Settlement. - (a) Who may initiate

proceeding - Upon payment of the appropriate filing fee, any individual who

has a cause of action against another individual involving any matter within

the authority of the lupon may complain, orally or in writing, to the lupon

chairman of the barangay.cralaw

(b) Mediation by lupon chairman - Upon receipt of the complaint, the lupon

chairman shall within the next working day summon the respondent(s), with

notice to the complainant(s) for them and their witnesses to appear before

him for a mediation of their conflicting interests. If he fails in his mediation


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effort within fifteen (15) days from the first meeting of the parties before him,

he shall forthwith set a date for the constitution of the pangkat in accordance

with the provisions of this Chapter.

(c) Suspension of prescriptive period of offenses - While the dispute is undermediation, conciliation, or arbitration, the prescriptive periods for offenses

and cause of action under existing laws shall be interrupted upon filing of the

complaint with the punong barangay. The prescriptive periods shall resume

upon receipt by the complainant of the complaint or the certificate of

repudiation or of the certification to file action issued by the lupon or pangkat

secretary: Provided, however, That such interruption shall not exceed sixty (60)

days from the filing of the complaint with the punong barangay.

(d) Issuance of summons; hearing; grounds for disqualification - The pangkat

shall convene not later than three (3) days from its constitution, on the day

and hour set by the lupon chairman, to hear both parties and their witnesses,

simplify issues, and explore all possibilities for amicable settlement. For this

purpose, the pangkat may issue summons for the personal appearance of

parties and witnesses before it. In the event that a party moves to disqualify

any member of the pangkat by reason of relationship, bias, interest, or any

other similar grounds discovered after the constitution of the pangkat, the

matter shall be resolved by the affirmative vote of the majority of the pangkat

whose decision shall be final. Should disqualification be decided upon, the

resulting vacancy shall be filled as herein provided for.

(e) Period to arrive at a settlement - The pangkat shall arrive at a settlement

or resolution of the dispute within fifteen (15) days from the day it convenes in

accordance with this section. This period shall, at the discretion of the

pangkat, be extendible for another period which shall not exceed fifteen (15)

days, except in clearly meritorious cases.

SEC. 411. Form of Settlement. - All amicable settlements shall be in writing, ina language or dialect known to the parties, signed by them, and attested to

by the lupon chairman or the pangkat chairman, as the case may be. When

the parties to the dispute do not use the same language or dialect, the

settlement shall be written in the language or dialect known to them.

SEC. 412. Conciliation. - (a) Pre-condition to Filing of Complaint in Court. - No

complaint, petition, action, or proceeding involving any matter within the

authority of the lupon shall be filed or instituted directly in court or any other

government office for adjudication, unless there has been a confrontation

between the parties before the lupon chairman or the pangkat, and that no

conciliation or settlement has been reached as certified by the lupon secretary

or pangkat secretary as attested to by the lupon or pangkat chairman or

unless the settlement has been repudiated by the parties thereto.

(b) Where Parties May Go Directly to Court. - The parties may go directly to

court in the following instances:chanrobles virtual law library

(1) Where the accused is under detention; (2) Where a person has otherwise

been deprived of personal liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as preliminary

injunction, attachment, delivery of personal property, and support pendente

lite; and


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(4) Where the action may otherwise be barred by the statute of limitations.

(c) Conciliation among members of indigenous cultural communities. - The

customs and traditions of indigenous cultural communities shall be applied in

settling disputes between members of the cultural communities.

SEC. 413. Arbitration. - (a) The parties may, at any stage of the proceedings,

agree in writing that they shall abide by the arbitration award of the lupon

chairman or the pangkat. Such agreement to arbitrate may be repudiated

within five (5) days from the date thereof for the same grounds and in

accordance with the procedure hereinafter prescribed. The arbitration award

shall be made after the lapse of the period for repudiation and within ten (10)

days thereafter.

(b) The arbitration award shall be in writing in a language or dialect known to

the parties. When the parties to the dispute do not use the same language or

dialect, the award shall be written in the language or dialect known to them.

SEC. 414. Proceedings Open to the Public; Exception. - All proceedings for

settlement shall be public and informal: Provided, however, That the lupon

chairman or the pangkat chairman, as the case may be, may motu proprio or

upon request of a party, exclude the public from the proceedings in the

interest of privacy, decency, or public morals.

SEC. 415. Appearance of Parties in Person. - In all katarungang pambarangay

proceedings, the parties must appear in person without the assistance of

counsel or representative, except for minors and incompetents who may be

assisted by their next-of-kin who are not lawyers.

SEC. 416. Effect of Amicable Settlement and Arbitration Award. - The amicable

settlement and arbitration award shall have the force and effect of a final

judgment of a court upon the expiration of ten (10) days from the date

thereof, unless repudiation of the settlement has been made or a petition to

nullify the award has been filed before the proper city or municipal court.

However, this provision shall not apply to court cases settled by the lupon

under the last paragraph of Section 408 of this Code, in which case the

compromise settlement agreed upon by the parties before the lupon

chairman or the pangkat chairman shall be submitted to the court and upon

approval thereof, have the force and effect of a judgment of said court.

SEC. 417. Execution. - The amicable settlement or arbitration award may beenforced by execution by the lupon within six (6) months from the date of the

settlement. After the lapse of such time, the settlement may be enforced by

action in the appropriate city or municipal court.

SEC. 418. Repudiation. - Any party to the dispute may, within ten (10) days

from the date of the settlement, repudiate the same by filing with the lupon

chairman a statement to that effect sworn to before him, where the consent is

vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient

basis for the issuance of the certification for filing a complaint as hereinabove

provided.

SEC. 419. Transmittal of Settlement and Arbitration Award to the Court. - The

secretary of the lupon shall transmit the settlement or the arbitration award to

the appropriate city or municipal court within five (5) days from the date of

the award or from the lapse of the ten-day period repudiating the settlement


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and shall furnish copies thereof to each of the parties to the settlement and

the lupon chairman.

SEC. 420. Power to Administer Oaths. - The punong barangay, as chairman of

the lupong tagapamayapa, and the members of the pangkat are herebyauthorized to administer oaths in connection with any matter relating to all

proceedings in the implementation of the katarungang pambarangay.

SEC. 421. Administration; Rules and Regulations. - The city or municipal

mayor, as the case may be, shall see to the efficient and effective

implementation and administration of the katarungang pambarangay. The

Secretary of Justice shall promulgate the rules and regulations necessary to

implement this Chapter.

SEC. 422. Appropriations. - Such amount as may be necessary for the effective

implementation of the katarungang pambarangay shall be provided for in the

annual budget of the city or municipality concerned.

ATTORNEYS ADMISSION TO BAR

Rule 138

Section 1. Who may practice law. - Any person heretofore duly admitted as a

member of the bar, or hereafter admitted as such in accordance with the

provisions of this rule, and who is in good and regular standing, is entitled to

practice law.

Sec. 2. Requirements for all applicants for admission to the bar. - Every

applicant for admission as a member of the bar must be a citizen of the

Philippines, at least twenty-one years of age, of good moral character, and a

resident of the Philippines; and must produce before the Supreme Court

satisfactory evidence of good moral character, and that no charges against

him, involving moral turpitude, have been filed or are pending in any court in

the Philippines.

Sec. 3. Requirements for lawyers who are citizens of the United States of

America. - Citizens of the United States of America who, before July 4, 1946,

were duly licensed members of the Philippine Bar, in active practice in the

courts of the Philippines and in good and regular standing as such may, upon

satisfactory proof of those facts before the Supreme Court, be allowed to

continue such practice after taking the following oath of office:

"I, _________________________, having been permitted to continue in the practice

of law in the Philippines, do solemnly swear that I recognize the supreme

authority of the Republic of the Philippines; I will support its Constitution and

obey the laws as well as the legal orders of the duly constituted authorities

therein; I will do no falsehood, nor consent to the doing of any in court; I will

not wittingly or willingly promote or sue any groundless, false or unlawful suit,

nor give aid nor consent to the same; I will delay no man for money or malice,


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and will conduct myself as a lawyer according to the best of my knowledge

and discretion with all good fidelity as well to the courts as to my clients; and I

impose upon myself this voluntary obligation without any mental reservation

or purpose of evasion. So help me God."

Sec. 4. Requirements for applicants from other jurisdictions. - Applicants for

admission who, being Filipino citizens, are enrolled attorneys in good standing

in the Supreme Court of the United States or in any circuit court of appeals or

district court therein, or in the highest court of any State or Territory of the

United States, and who can show by satisfactory certificates that they have

practiced at least five years in any of said courts, that such practice began

before July 4, 1946, and that they have never been suspended or disbarred,may, in the discretion of the Court, be admitted without examination.

Sec. 5. Additional requirements for other applicants. - All applicants for

admission other than those referred to in the two preceding sections shall,

before being admitted to the examination, satisfactorily show that they have

regularly studied law for four years, and successfully completed all prescribed

courses, in a law school or university, officially approved and recognized by

the Secretary of Education. The affidavit of the candidate, accompanied by a

certificate from the university or school of law, shall be filed as evidence of

such facts, and further evidence may be required by the court.

No applicant shall be admitted to the bar examinations unless he has

satisfactorily completed the following courses in a law school or university

duly recognized by the government: civil law, commercial law, remedial law,

criminal law, public and private international law, political law, labor and social

legislation, medical jurisprudence, taxation and legal ethics. chan robles virtual

law library

Sec. 6. Pre-Law. - No applicant for admission to the bar examination shall beadmitted unless he presents a certificate that he has satisfied the Secretary of

Education that, before he began the study of law, he had pursued and

satisfactorily completed in an authorized and recognized university or college,

requiring for admission thereto the completion of a four-year high school

course, the course of study prescribed therein for a bachelor's degree in arts

or sciences with any of the following subjects as major or field of

concentration: political science, logic, english, spanish, history and economics.

Sec. 7. Time for filing proof of qualifications. - All applicants for admission

shall file with the clerk of the Supreme Court the evidence required by section

2 of this rule at least fifteen (15) days before the beginning of the examination.

If not embraced within sections 3 and 4 of this rule they shall also file within

the same period the affidavit and certificate required by section 5, and if

embraced within sections 3 and 4 they shall exhibit a license evidencing the

fact of their admission to practice, satisfactory evidence that the same has not

been revoked, and certificates as to their professional standing. Applicants

shall also file at the same time their own affidavits as to their age, residence,

and citizenship.

Sec. 8. Notice of applications. - Notice of applications for admission shall be

published by the clerk of the Supreme Court in newspapers published in


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Pilipino, English and Spanish, for at least ten (10) days before the beginning of

the examination.

Sec. 9. Examination; subjects. - Applicants, not otherwise provided for in

sections 3 and 4 of this rule, shall be subjected to examinations in thefollowing subjects: Civil Law; Labor and Social Legislation; Mercantile Law;

Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public

Officers); International Law (Private and Public); Taxation; Remedial Law (Civil

Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical

Exercises (in Pleading and Conveyancing).

Sec. 10. Bar examination, by questions and answers, and in writing. - Persons

taking the examination shall not bring papers, books or notes into the

examination rooms. The questions shall be the same for all examinees and a

copy thereof, in English or Spanish, shall be given to each examinee.

Examinees shall answer the questions personally without help from anyone.

Upon verified application made by an examinee stating that his penmanship is

so poor that it will be difficult to read his answers without much loss of time,

the Supreme Court may allow such examinee to use a typewriter in answeringthe questions. Only noiseless typewriters shall be allowed to be used.

The committee of bar examiners shall take such precautions as are necessary

to prevent the substitution of papers or commission of other frauds.

Examinees shall not place their names on the examination papers. No oral

examination shall be given.

Sec. 11. Annual examination. - Examinations for admission to the bar of the

Philippines shall take place annually in the City of Manila. They shall be held in

four days to be designated by the chairman of the committee on bar

examiners. The subjects shall be distributed as follows: First day: Political and

International Law (morning) and Labor and Social Legislation (afternoon);

Second day: Civil Law (morning) and Taxation (afternoon); Third day:

Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial

Law (morning) and Legal Ethics and Practical Exercises (afternoon).

Sec. 12. Committee of examiners. - Examinations shall be conducted by a

committee of bar examiners to be appointed by the Supreme Court. This

committee shall be composed of a Justice of the Supreme Court, who shall actas chairman, and who shall be designated by the court to serve for one year,

and eight members of the bar of the Philippines, who shall hold office for a

period of one year. The names of the members of this committee shall be

published in each volume of the official reports.

Sec. 13. Disciplinary measures. - No candidate shall endeavor to influence any

member of the committee, and during examination the candidates shall not

communicate with each other nor shall they give or receive any assistance.

The candidate who violates this provision, or any other provision of this rule,

shall be barred from the examination, and the same to count as a failure

against him, and further disciplinary action, including permanent

disqualification, may be taken in the discretion of the court.

Sec. 14. Passing average. - In order that a candidate may be deemed to have

passed his examinations successfully, he must have obtained a general


12/41

average of 75 per cent in all subjects, without falling below 50 per cent in any

subject. In determining the average, the subjects in the examination shall be

given the following relative weights: Civil Law, 15 per cent; Labor and Social

Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent;

Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial

Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.

Sec. 15. Report of the committee; filing of examination papers. - Not later

than February 15th after the examination, or as soon thereafter as may be

practicable, the committee shall file its reports on the result of such

examination. The examination papers and notes of the committee shall be

fixed with the clerk and may there be examined by the parties in interest, afterthe court has approved the report.

Sec. 16. Failing candidates to take review course. - Candidates who have

failed the bar examinations for three times shall be disqualified from taking

another examination unless they show to the satisfaction of the court that

they have enrolled in and passed regular fourth year review classes as well as

attended a pre-bar review course in a recognized law school.

The professors of the individual review subjects attended by the candidates

under this rule shall certify under oath that the candidates have regularly

attended classes and passed the subjects under the same conditions as

ordinary students and the ratings obtained by them in the particular subject.

Sec. 17. Admission and oath of successful applicants. - An applicant who has

passed the required examination, or has been otherwise found to be entitled

to admission to the bar, shall take and subscribe before the Supreme Court

the corresponding oath of office.

Sec. 18. Certificate. - The Supreme Court shall thereupon admit the applicant

as a member of the bar for all the courts of the Philippines, and shall direct anorder to be entered to that effect upon its records, and that a certificate of

such record be given to him by the clerk of court, which certificate shall be his

authority to practice.

Sec. 19. Attorneys' roll. - The clerk of the Supreme Court shall keep a roll of all

attorneys admitted to practice, which roll shall be signed by the person

admitted when he receives his certificate.

Sec. 20. Duties of attorneys. - It is the duty of an

attorney:chanroblesvirtuallawlibrary

(a) To maintain allegiance to the Republic of the Philippines and to support

the Constitution and obey the laws of the Philippines;

(b) To observe and maintain the respect due to the courts of justice and

judicial officers;

(c) To counsel or maintain such actions or proceedings only as appear to him

to be just, and such defenses only as he believes to be honestly debatable

under the law;

(d) To employ, for the purpose of maintaining the causes confided to him,

such means only as are consistent with truth and honor, and never seek to


13/41

mislead the judge or any judicial officer by an artifice or false statement of fact

or law;

(e) To maintain inviolate the confidence, and at every peril to himself, to

preserve the secrets of his client, and to accept no compensation in

connection with his client's business except from him or with his knowledge

and approval;

(f) To abstain from all offensive personality and to advance no fact prejudicial

to the honor or reputation of a party or witness, unless required by the justice

of the cause with which he is charged;

(g) Not to encourage either the commencement or the continuance of an

action or proceeding, or delay any man's cause, from any corrupt motive or

interest;

(h) Never to reject, for any consideration personal to himself, the cause of the

defenseless or oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable

means, regardless of his personal opinion as to the guilt of the accused, to

present every defense that the law permits, to the end that no person may be

deprived of life or liberty, but by due process of law.

Sec. 21. Authority of attorney to appear. - An attorney is presumed to be

properly authorized to represent any cause in which he appears, and no

written power of attorney is required to author ize him to appear in court for

his client, but the presiding judge may, on motion of either party and on

reasonable grounds therefor being shown, require any attorney who assumes

the right to appear in a case to produce or prove the authority under which

he appears, and to disclose, whenever pertinent to any issue, the name of the

person who employed him, and may thereupon make such order as justice

requires. An attorney wilfully appearing in court for a person without being

employed, unless by leave of the court, may be punished for contempt as an

officer of the court who has misbehaved in his official transactions. chan

robles virtual law library

Sec. 22. Attorney who appears in lower court presumed to represent client onappeal. - An attorney who appears de parte in a case before a lower court

shall be presumed to continue representing his client on appeal, unless he

files a formal petition withdrawing his appearance in the appellate court.

Sec. 23. Authority of attorneys to bind clients. - Attorneys have authority to

bind their clients in any case by any agreement in relation thereto made in

writing, and in taking appeals, and in all matters of ordinary judicial

procedure. But they cannot, without special authority, compromise their

client's litigation, or receive anything in discharge of a client's claim but the

full amount in cash.

Sec. 24. Compensation of attorneys; agreement as to fees. - An attorney shall

be entitled to have and recover from his client no more than a reasonable

compensation for his services, with a view to the importance of the subject

matter of the controversy, the extent of the services rendered, and the


14/41

professional standing of the attorney. No court shall be bound by the opinion

of attorneys as expert witnesses as to the proper compensation, but may

disregard such testimony and base its conclusion on its own professional

knowledge. A written contract for services shall control the amount to be paid

therefor unless found by the court to be unconscionable or unreasonable.

Sec. 25. Unlawful retention of client's funds; contempt. - When an attorney

unjustly retains in his hands money of his client after it has been demanded,

he may be punished for contempt as an officer of the Court who has

misbehaved in his official transactions; but proceedings under this section

shall not be a bar to a criminal prosecution.

Sec. 26. Change of attorneys. - An attorney may retire at any time from any

action or special proceeding, by the written consent of his client filed in court.

He may also retire at any time from an action or special proceeding, without

the consent of his client, should the court, on notice to the client and

attorney, and on hearing, determine that he ought to be allowed to retire. In

case of substitution, the name of the attorney newly employed shall be

entered on the docket of the court in place of the former one, and written

notice of the change shall be given to the adverse party.

A client may at any time dismiss his attorney or substitute another in his place,

but if the contract between client and attorney has been reduced to writing

and the dismissal of the attorney was without justifiable cause, he shall be

entitled to recover from the client the full compensation stipulated in the

contract. However, the attorney may, in the discretion of the court, intervene

in the case to protect his rights. For the payment of his compensation the

attorney shall have a lien upon all judgments for the payment of money, and

executions issued in pursuance of such judgment, rendered in the case

wherein his services had been retained by the client.

Sec. 27. Attorneys removed or suspended by Supreme Court on what

grounds. - A member of the bar may be removed or suspended from his

office as attorney by the Supreme Court for any deceit, malpractice, or other

gross misconduct in such office, grossly immoral conduct, or by reason of his

conviction of a crime involving moral turpitude, or for any violation of the

oath which he is required to take before admission to practice, or for a wilfull

disobedience of any lawful order of a superior court, or for corruptly orwilfully appearing as an attorney for a party to a case without authority so to

do. The practice of soliciting cases at law for the purpose of gain, either

personally or through paid agents or brokers, constitutes malpractice.

Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First

Instance. - The Court of Appeals or a Court of First Instance may suspend an

attorney from practice for any of the causes named in the last preceding

section, and after such suspension such attorney shall not practice his

profession until further action of the Supreme Court in the premises.

Sec. 29. Upon suspension by Court of Appeals or Court of First Instance,

further proceedings in Supreme Court. - Upon such suspension, the Court of

Appeals or the Court of First Instance shall forthwith transmit to the Supreme

Court a certified copy of the order or suspension and a full statement of the

facts upon which the same was based. Upon the receipt of such certified copy


15/41

and statement, the Supreme Court shall make full investigation of the facts

involved and make such order revoking or extending the suspension, or

removing the attorney from his office as such, as the facts warrant.

Sec. 30. Attorney to be heard before removal or suspension. - No attorneyshall be removed or suspended from the practice of his profession, until he

has had full opportunity upon reasonable notice to answer the charges

against him, to produce witnesses in his own behalf, and to be heard by

himself or counsel. But if upon reasonable notice he fails to appear and

answer the accusation, the court may proceed to determine the matter ex

parte.

Sec. 31. Attorneys for destitute litigants. - A court may assign an attorney to

render professional aid free of charge to any party in a case, if upon

investigation it appears that the party is destitute and unable to employ an

attorney, and that the services of counsel are necessary to secure the ends of

justice and to protect the rights of the party. It shall be the duty of the

attorney so assigned to render the required service, unless he is excused

therefrom by the court for sufficient cause shown.

Sec. 32. Compensation for attorneys de oficio. - Subject to availability of

funds as may be provided by law the court may, in its discretion, order an

attorney employed as counsel de oficio to be compensated in such sum as

the court may fix in accordance with section 24 of this rule. Whenever such

compensation is allowed, it shall not be less than thirty pesos (P30.00) in any

case, nor more than the following amounts: (1) Fifty pesos (P50.00) in light

felonies; (2) One hundred pesos (P100.00) in less grave felonies; (3) Two

hundred pesos (P200.00) in grave felonies other than capital offenses; (4) Five

hundred pesos (P500.00) in capital offenses.

Sec. 33. Standing in court of persons authorized to appear for Government. -

Any official or other person appointed or designated in accordance with lawto appear for the Government of the Philippines shall have all the rights of a

duly authorized member of the bar to appear in any case in which said

government has an interest direct or indirect.

Sec. 34. By whom litigation conducted. - In the court of a justice of the peace

a party may conduct his litigation in person, with the aid of an agent or friend

appointed by him for that purpose, or with the aid of an attorney. In any other

court, a party may conduct his litigation personally or by aid of an attorney,

and his appearance must be either personal or by a duly authorized member

of the bar.

Sec. 35. Certain attorneys not to practice. - No judge or other official or

employee of the superior courts or of the Office of the Solicitor General, shall

engage in private practice as a member of the bar or give professional advice

to clients.

Sec. 36. Amicus curiae. - The court may, in special cases, and upon proper

application, permit the appearance, as amici curiae, of those lawyers who in its

opinion can help in the disposition of the matter before it; or it may, on its

own initiative, invite prominent attorneys to appear as amici curiae in such

special cases.


16/41

Sec. 37. Attorneys' liens. - An attorney shall have a lien upon the funds,

documents and papers of his client which have lawfully come into his

possession and may retain the same until his lawful fees and disbursements

have been paid, and may apply such funds to the satisfaction thereof. He shall

also have a lien to the same extent upon all judgments for the payment of

money, and executions issued in pursuance of such judgments, which he has

secured in a litigation of his client, from and after the time when he shall have

caused a statement of his claim of such lien to be entered upon the records of

the court rendering such judgment, or issuing such execution, and shall have

caused written notice thereof to be delivered to his client and to the adverse

party; and he shall have the same right and power over such judgments and

executions as his client would have to enforce his lien and secure the payment

of his just fees and disbursements.

LAW STUDENT PRACTICE RULE

Rule 138-A

SECTION 1. Conditions for Student Practice. - A law student who has

successfully completed 3rd year of the regular four-year prescribed law

curriculum and is enrolled in a recognized law school's clinical legal education

program approved by the Supreme Court, may appear without compensation

in any civil, criminal or administrative case before any trial court, tribunal,

board or officer, to represent indigent clients accepted by the legal clinic of

the law school.

SEC. 2. Appearance. - The appearance of the law student authorized by this

rule, shall be under the direct supervision and control of a member of

theIntegrated Bar of the Philippinesduly accredited by the law school. Any

and all pleadings, motions, briefs, memoranda or other papers to be filed,

must be signed by the supervising attorney for and in behalf of the legal

clinic.

SEC. 3. Privileged communications. - The Rules safeguarding privileged

communications between attorney and client shall apply to similar

communications made to or received by the law student, acting for the legal

clinic.

SEC. 4. Standards of conduct and supervision. - The law student shall comply

with the standards of professional conduct governing members of the

Bar. Failure of an attorney to provide adequate supervision of student

practice may be a ground for disciplinary action. (SC Circular No. 19, prom.

Dec. 19, 1986).
http://www.chanrobles.com/integratedbarofthephilippines.htmhttp://www.chanrobles.com/integratedbarofthephilippines.htm


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November 29, 1920

In re Application of MAX SHOOP for admission to practice law

MALCOLM, J

Application has been made to this court by Max Shoop for admission to

practice law in the Philippines Islands under paragraph four of the Rules for

the Examination of Candidates for Admission to the Practice of Law, effective

July 1, 1920. The supporting papers show that the applicant has been admitted


18/41

to practice, and has practiced for more than five years in the highest court of

the State of New York.

THE RULES

That portion of the rules of this court, in point, is as follows:

Applicants for admission who have been admitted to practice in the

Supreme Court of the United States or in any circuit court of appeal

or district court, therein, or in the highest court of any State or

territory of the United States, which State or territory by comity

confers the same privilege on attorneys admitted to practice in the

Philippine Islands, and who can show by satisfactory affidavits that

they have practiced at least five years in any of said courts, may, in

the discretion of the court, be admitted without examination.

The above rule requires that New York State by comity confer the privilege of

admission without examination under similar circumstances to attorneys

admitted to practice in the Philippine Islands. The rule of the New York court

permits admission without examination, in the discretion of the Appellate

Division in several cases, among which are the following:

1. Any person admitted to practice and who has practiced five years

as a member of the bar in the highest law court in any other state or

territory of the American Union or in the District of Columbia.

2. Any person admitted to practice and who has practiced five years

in another country whose jurisprudence is based on the principles of

the English Common Law.

This court is advised informally that under this rule one member of the bar of

the Philippine Islands has been admitted to practice, without examination, in

the State of New York, and one member of the same bar has been refused

such admission, the latter being the more recent case. The rulings of the New

York court have not been bought to the attention of this court authoritatively,but assuming that reports of such rulings by the New York court are true, in

view of the apparent conflict, it seems proper to enter upon the consideration

of whether or not under the New York rule as it exits the principle of comity is

established. It must be observed that under the rules of both jurisdictions,

admission in any particular case is in the discretion of the court. Refusal to

admit in any particular case is not necessarily conclusive as to the general

principles established by the rules.

THE PHILIPPINE ISLANDS A TERRITORY.

Under paragraph 1 of the New York rule, practice for five years in the highest

court in any "State or territory of the American Union" is the basic

qualification. If the Philippine Islands is a territory of the United States within

the meaning of the word as used in that rule, comity would seem to exist.

The word "territory" has a general and a technical meaning. It is clear that the

Philippine Islands is not an "organized territory" incorporated into the United

States under the constitution. (Dorr vs.U.S., 195 U.S., 138.) It is likewise clear

that the Philippine Islands is not a "foreign country." (The Diamond Rings, 183

U.S., 176.) In the language of that case it is a "territory of the United States

over which civil government could be established." So also is Porto Rico (De

Lima vs.Bidwell, 182 U.S., 1.) It has been held that Porto Rico is not a foreign

territory and that the United States laws covering "territories." such as the

Federal Employer's Liability Act, includes Porto Rico. (American Railroad Co. of

Porto Rico vs.Didricksen, 227 U.S., 145.) Porto Rico, Hawaii, and Alaska are


19/41

now incorporated, organized territories of the United States.

(Muratti vs.Foote, 25 Porto Rico, 527; Hawaii vs.Mankichi, 190 U.S., 197;

Rasmussen vs.U.S., 197 U.S., 516.)

An opinion of the Attorney-General of the United States holds that

While, like Porto Rico, the Philippine Islands are not incorporated in

the United States, they clearly are territory of the United States and to

the extent that Congress has assumed to legislate for them, they have

been granted a form of territorial government, and to this extent are

a territory. (30 Op. Atty.-Gen., U.S., 462, reversing 24 Op. Atty.-Gen.

U.S., 549.)

Further, the Philippine Islands have been held not to be "another country"

within the meaning of the Cuban Commercial Treaty. (Faber vs.U.S., 221 U.S.,

649.) Chief Justice Marshall, in construing the phrase "United States" once

observed:

Does this term designate the whole or any particular portion of the

American Empire? Certainly this question can admit of but one

answer. It is the name given to our great Republic, which is composed

of states and territories. The District of Columbia or the territory westof Missouri is not less within the United States than Maryland or

Pennsylvania. (Loughborough vs.Blake, 5 Wheat [U.S.], 317, at p. 319.)

This is the broad general view which would seem to have been the point of

view of the New York courts in using the phrase "Any state or territory of the

American Union." The New York rule contemplates "state," "territory," and

"another country." It seems clear that the Philippine Islands is not "another

country." It is not believed that the New York court intended the word

territory to be limited to the technical meaning of organized territory, or it

would have used the more accurate expression. the full phraseology, "any

state or territory of the American Union," indicates a sweeping intention to

include all of the territory of the United States, whatever the political

subdivision might be, as distinguished from foreign country. Otherwise, the

Philippine Islands would be in an anomalous position like unto Edward Everett

Hale's "A Man Without a Country" a land neither "another country," nor a

"state," nor a "territory" a land without status.

Of course the construction of what is intended by the use of that phrase is for

the New York courts finally to determine, but in the absence of any

authoritative decision from the New York courts on the point, we feel justified

in concluding that under paragraph 1 of the New York rule there exists

between that jurisdiction and this, with reference to admission of attorneys

without examination, a basis of comity sufficient to satisfy the requirement in

the rule of this court in that regard.

A COMMON LAW JURISDICTION.

But assuming that comity is not permitted under paragraph 1 of the New York

rule, we turn to a consideration of whether or not it exits by virtue of

paragraph 2. This rule applies to "another country whose jurisprudence is

based on the principles of the English Common Law." We have then further to

assume that if the Philippine Islands is not a "state or territory," that it must be

"another country." The question then presented is upon what principles is the

present jurisprudence of these Islands based? this is a question which can

property be answered by this court. It is a problem, however, upon which

books could be and have been written. We will endeavor to make a brief

analysis of the situation.


20/41

What is "jurisprudence based on the principles of the English Common Law?"

Jurisprudence is the groundwork of the written law, or, as Bouvier defines it,

"The science of law. The particular science of giving a wise interpretation to

the laws and making a just application of them to call cases as they arise." In

an untechnical sense, it sometimes means Case Law.

COMMON LAW IN THE UNITED STATES.

We must assume that the New York court, in using this phrase, considered

that the jurisprudence of New York State was based upon the principles of the

English common Law. We should, therefore, consider to what extent the

English Common Law principles apply to New York. In a case in 1881 we find

the following:

And the Common Law of England was the law of the colony at that

date (April 19, 1775), so far as it was applicable to the circumstances of

the Colonists. And it has since continued so to be, when conformable

to our institutions, unless it was established by an English statute

which has since been abrogated or was rejected in colonial

jurisprudence, or has been abolished by our legislation.

(cutting vs.Cutting, 86 N.Y., 522, p. 529.)

And again:

This court has interpreted this provision of the constitution to man

not that all of the Common Law of England was the law of the

Colonists at the time of the making of the Constitution, but only so

much of it as was applicable to the circumstances of the Colonists and

conformable to our institutions. Cutting vs.Cutting, 86 N.Y., 522, p.

529; Williams vs.Williams, 8 N.Y., 525, p. 541. (Shayne vs.Evening Post

Publishing Co., 168 N.Y., 70, at p. 76.)

In Morgan vs. King (30 Barber [N.Y.], 9), the New York court said that in

adopting the English Common Law, New York adopted:

The written law of England as a constantly improving science rather

than as an art; as a system of legal logic, rather than as a code of

rules, that is, that the fundamental principles and modes of

reasoning and the substance of the rules of the Common Law are

adopted as illustrated by the reasons on which they are based, rather

than the mere words in which they are expressed.

Once more, in 1903, the New York court said in connection with a question of

the right of the public to use the foreshore:lawph!l.net

In adopting the Common Law of the Mother country we did not

incorporate into our system of jurisprudence any principles which are

essentially inconsonant with our circumstances or repugnant to the

spirit of our institutions. (Barnes vs.Midland Railroad Terminal Co.,

193 N.Y., 378, at p. 384.)

The above statements of the New York court clearly indicate the scope of the

English Common Law in that state. In most of the States, including New York,

codification and statute law have come to be a very large proportion of the

law of the jurisdiction, the remaining proportion being a system of case law

which has its roots, to a large but not an exclusive degree, in the old English

cases. In fact, present day commentators refer to American jurisprudence or

Anglo-American jurisprudence as distinguished from the English Common

Law.


21/41

Accordingly, in speaking of a jurisprudence which is "based on the English

Common Law," for present purpose at least, it would seem property to say

that the jurisprudence of a particular jurisdiction is based upon the principles

of that Common Law, if, as a matter of fact, its statute law and its case law to

a very large extent includes the science and application of law as laid Down by

the old English cases, as perpetuated and modified by the American cases.

COMMON LAW ADOPTED BY DECISION.

The concept of a common law is the concept of a growing and ever-changing

system of legal principles and theories. and it must be recognized that due to

the modern tendency toward codification (which was the principle of the

Roman and Civil Law), there are no jurisdictions to-day with a pure English

Common Law, with the exception of England itself. In the United States the

English Common Law is blended with American codification and remnants of

the Spanish and French Civil Codes. There a legal metamorphosis has

occurred similar to that which is transpiring in this jurisdiction to-day. Some of

the western states, which were carved out of the original Louisiana territory,

have adopted the Common Law by decision. (State vs.Twogood, 7 Iowa, 252;

Barlow vs.Lambert, 28 Alabama, 704; Parsons vs.Lindsay, 41 Kansas, 336;

McKennen vs.Winn, 1 Okla., 327.)

Louisiana has long been recognized as the one State of the Union which

retained a portion of the Civil Law. In a case in 1842 in Louisiana, the court

considered the question of whether a protest on a promissory note had been

made within the required time. The court rejected the straight Civil code rule,

and adopted the custom of New Orleans, which was the law of the sister

States, saying:

The superior court of the late territory of Orleans very early held that although

the laws of Spain were not abrogated by the taking possession of the country

by the United States, yet from that event the commercial law of the Union

became the commercial law of New Orleans; and this court has frequently

recognized the correctness of these early decisions, principally in bills of

exchange, promissory notes and insurance. (Wagner vs.Kenner, 2 Rob. [La.],

120.)

In Xiques vs.Bujac (7 La. Ann., 498, p. 504), the court after deciding a question

involving the dedication of real property according to the Civil code rules,

said:

I must add that the general doctrine laid down in Common Law

courts has been admitted by our courts with some modification

resulting from our different systems of law. lawph!l.net

Louisiana, by statute, adopted certain common law rules, and with reference

to these the court said, in State vs.McCoy (8 Rob. [La.], 545):

We concur with the counsel in believing that the legislature in

adopting the Common Law rules of proceeding, method of trial, etc.,

adopted the system as it existed in 1805, modified, explained andperfected by statutory enactment, so far as those enactments are not

found to be inconsistent with the peculiar character and genius of our

government and institution.

From this brief survey of the extent of the English Common Law basis in the

States, we may conclude (1) that the New York court in referring to a

jurisdiction whose jurisprudence is based on the English Common Law, uses

the phrase in a general sense; and (2) that such Common Law may become


22/41

the basis of the jurisprudence by decision of the courts where practical

considerations and the effect of sovereignty gives ground for such a decision.

If, in the Philippines Islands, a comparatively young jurisdiction, English

Common Law principles as embodied in Anglo-American Jurisprudence are

used and applied by the courts to the extent that such Common Law

principles are not in conflict with the local written laws, customs, and

institutions as modified by the change of sovereignty and subsequent

legislation, and there is no other foreign case law system used to any

substantial extent, then it is proper to say in the sense of the New York rule

that the "jurisprudence" of the Philippine Islands is based on the English

Common Law.

IN THE PHILIPPINE ISLANDS.

The extent of the English or the Anglo-American Common Law here has not

been definitely decided by this court. But when the subject has been referred

to by this court there has been a striking similarity to the quotations from the

American decisions above cited with reference to the English Common Law.

In Alzua and Arnalot vs.Johnson (21 Phil., 308), this court, in passing upon an

objection of counsel, that while a certain rule was universally recognized and

applied in the courts of England and the United States, it was not the law inthe Philippine Islands, said:

To this we answer that while it is true that the body of the Common

Law as known to Anglo-American jurisprudence is not in force in

these Islands, "nor are the doctrines derived therefrom binding upon

our courts, save only in so far as they are founded on sound

principles applicable to local conditions, and are not in conflict with

existing law" (U.S. vs.Cuna, 12 Phil., 241); nevertheless many of the

rules, principles, and doctrines of the Common Law have, to all intents

and purposes, been imported into this jurisdiction, as a result of the

enactment of new laws and the organization and establishment of

new institutions by the Congress of the United States or under its

authority; for it will be found that many of these laws can only be

construed and applied with the aid of the Common Law from which

they are derived, and that to breathe the breath of life into many of

the institutions introduced in these Islands under American

sovereignty recourse must be had to the rules, principles, and

doctrines of the Common Law under whose protecting aegis and

prototypes of these institutions had their birth.

x x x x x x x x x

And it is safe to say that in every volume of the Philippine Reports

numbers of cases might be cited wherein recourse has been had to

the rules, principles and doctrines of the Common Law in ascertaining

the true meaning and scope of the legislation enacted in and for the

Philippine Islands since they passed under American sovereignty. (Pp.

331, 333.)

And later in speaking of the judicial system of the Philippines Islands (page333):

The spirit with which it is informed, and indeed its very language and

terminology would be unintelligible without some knowledge of the

judicial system of England and the United States. Its manifest purpose

and object was to replace the old judicial system, with its incidents

and traditions drawn from Spanish sources, with a new system

modelled in all its essential characteristics upon the jud icial system of


23/41

the United States. It cannot be doubted, therefore, that any incident

of the former system which conflicts with the essential principles and

settled doctrines on which the new system rests must be held to be

abrogated by the law organizing the new system.

In U.S. vs.De Guzman (30 Phil., 416), the court spoke as follows:

We have frequently held that, for the proper construction and

application of the terms and provisions of legislative enactments

which have been borrowed from or modelled upon Anglo-American

precedents, it is proper and of times essential to review the legislative

history of such enactments and to find an authoritative guide for their

interpretation and application in the decisions of American and

English courts of last resort construing and applying similar legislation

in those countries. (Kepner vs.U.S., 195 U.S., 100; 11 Phil., 669;

Serra vs.Mortiga, 204 U.S., 470; 11 Phil., 762; Alzua and

Arnalot vs.Johnson, 21 Phil., 308.) Indeed it is a general rule of

statutory construction that courts may take judicial notice of the

origin and history of the statutes which they are called upon to

construe and administer, and of the facts which affect their derivation,

validity and operation. (2 Lewis' Sutherland on Statutory Construct ion,

sec. 309.)

In U.S. vs.Abiog and Abiog (37 Phil., 137), this court made this further

statement on the subjects:

To elucidate the principles of the Anglo-American Common Law

are for the Philippines, just as they were for the State of Louisiana and

just as the English Common Law was for the United States, of far-

reaching influence. The Common Law is entitled to our deepest

respect and reverence. The courts are constantly guided by its

doctrines. Yet it is true as heretofore expressly decided by this Court

that "neither English nor American Common Law is in force in

these Islands, nor are the doctrines derived therefrom binding upon

our courts, save only in so far as they are founded on sound

principles applicable to local conditions, and are not in conflict with

existing law." (U.S. vs.Cuna [1908], 12 Phil., 241.)

What we really have, if we were not too modes to claim it, is a

Philippine Common Law influenced by the English and American

Common Law, the derecho comunof Spain, and the customary law of

the Islands and builded on a case law of precedents. Into this

Philippine Common Law, we can properly refuse to take a rule which

would estop other courses of reasoning and which, because of a lack

of legal ingenuity would permit men guilty of homicide to escape on

a technicality.

At this juncture, three years after the last quoted comment, the influence of

English and American jurisprudence can be emphasized even more strongly.

A survey of recent cases in the Philippine Reports, and particularly those of

the last few years, shows an increasing reliance upon English and American

authorities in the formation of what may be termed a Philippine Common

Law, as supplemental to the statute law of this jurisdiction. An analysis will

show that a great preponderance of the jurisprudence of this jurisdiction is

based upon Anglo-American case law precedents, exclusively in applying

those statutory laws which have been enacted since the change of sovereignty

and which conform more or less to American statutes, and to a large

extent in applying and expanding the remnants of the Spanish codes and

written laws.


24/41

PHILIPPINE STATUTE LAW.

Introductory to analyzing what Spanish written laws remain in force to-day,

we will consider in a general way those Spanish laws which were in force at

the time of the change of severeignty.

Spanish law became highly codified during the nineteenth century. All of the

laws of Spain were, however, not made applicable to the Philippine Islands;

only those were effective here which were extended by royal decree. The chief

codes of Spain made effective in the Philippine were as follows:

Penal Code 1887

Code of Commerce 1888

Ley Provisional, Code of Criminal Procedure, and Code of

Civil Procedure1888

Civil Code 1889

(Except portion relating to marriage, thus reviving a

portion of Marriage Law of 1870.) Marriage Law1870

Mortgage Law 1889

Railway Laws1875 and

1877

Law of Waters 1866

In addition to these there were certain special laws having limited

application: Las Siete Partidas; Las Leyes de Toro; Leyes de las Indias; La

Novisima Recopilacion; Mining Law; Notarial Law; Spanish Military Code, and

the Corpyright Law.

The foregoing were written laws which, by change of sovereignty, acquired

the force of statute law in the Philippine Islands. There was no properly called

Common Law or Case Law of Spain to accompany and amplify these statues,

although there were, of course, the customs of the people of the Islands,

which continued, in a sense, unwritten law. Spanish jurisprudence does not

recognize the principle of stare decisis; consequently, there could be no

Common Law in any sense analogous to the English or American Common

Law. Article 6 of the Civil Code provides:

When there is no law exactly applicable to the point in controversy,

the customs of the place shall be observed and in the absence

thereof, the general principles of law.

In order to determined the general principles of law "judicial decision cannot

be resorted to" . . . . (2 Derecho Civil of Sanchez roman, pp. 79-81; 1 Manresa,

p. 80.) A lower court of Spain is at liberty to disregard the decisions of a

higher court. This is the general continental rule. (Holland's Jurisprudence, 11th

Ed., pp. 68-70.) "The Partidas is still the basis of Spanish Common Law, for the

more recent compilations are chiefly founded on it and cases which cannot bedecided either by these compilations or by the local fueros must be decided

by the provisions of thePartidas." (IV Dunham, History of Spain, p. 109.)

The Partidas is a code law and cannot in any proper sense be considered as

Common Law. It specifically provided, however, for recourse to customs when

the written law was silent. The customs to which resort is to be had are the

customs of the particular place where the case arise; the customs of one

locality in Spain having no effect on the application of law in another place. (1


25/41

Manresa, pp. 77-79; Civil Code, art. 6; Code of Commerce, art. 2.) Accordingly,

the Spanish customary law could not have any force here. The law or custom

cannot be migratory. Manresa does not defined what is meant by "general

principles of law." but from his discussion under article 6 of the Civil Code it

appears how far from a case law system is Spanish jurisprudence. He

formulates the rule that courts are governed: first, by written law; second, by

the customs of the place; third, by judicial decision; and fourth, by general

principles of law. In fact, un urging that resort to judicial decisions should

come before resort to general principles of law, Manresa rather implies that

the practice of the courts is the contrary.

English Common Law is quite a different conception. While it grew out of the

early Anglo-Saxon customs, it came in time to be a case law of binding force

which controlled custom. In fact, it became so binding that it was found

necessary, in order to effect justice in particular cases, to establish the Court of

Chancery, which became the court of equity. The English Common Law

recognizes custom only in so far as it does not conflict with the well settled

principles of that law. Under the Spanish system, on the other hand, when the

written law is silent, before considering precedents in the cases the court is

governed by the customs of the locality at the time.

Consequently, by the change of sovereignty there was no body of case law or

common law of Spain which could be considered as existing in connection

with the written law retained in force in these Islands. The only amplification of

that written law was the local customs of the people of the Islands. This is

particularly true of Spanish decision rendered since the change of sovereignty,

which do not preclude the local courts from exercising an independent

judgment. (Cordova vs.Rijos, 227 U.S., 375.)

SPANISH STATUTE LAW.

The Spanish statute law, as amplified by Spanish commentaries but without a

background of Spanish precedent or case law, was by the change of

sovereignty, severed from Spanish jurisprudence and made effective in this

jurisdiction to the same extent as if Congress had enacted new laws for the

Philippines modelled upon those same Spanish statutes. This retention of the

local private law was merely in accordance with the principles of International

Law in that regard. However, by the mere fact of the change of sovereignty,

all portions of that statute law which might be termed political law were

abrogated immediately by the change of sovereignty. Also, all Spanish laws,

customs, and rights of property inconsistent with the Constitution and

American principles and institutions were thereupon superseded.

(Sanchez vs.U.S., 216 U.S., 167.)

We will give a brief analysis of the further extent to which the Spanish statute

law has been repealed and cut down since the change of sovereignty. The

table is the note1below illustrates the situation in a general way.

Even the Spanish Civil Code has been largely modified as will appear from the

table in the note2below.

CASES UNDER AMERICAN DERIVED STATUTES.

It thus appears that the bulk of present day Statute Law is derivative from

Anglo-American sources; derivative within the sense of having been copied,

and in the sense of having been enacted by Congress or by virtue of its

authority. This court has repeatedly held that in dealing with the cases which

arise under such statute law the court will be governed by the Anglo-

American cases in construction and application. (U.S. vs.De Guzman, 30 Phil.,

416, at p. 419; U.S. vs.Cuna, 12 Phil., 241; Cerezo vs.Atlantic, Gulf & Pacific Co.,

33 Phil., 245, 428, 429.)


26/41

To illustrate more clearly the scope of the use of Anglo-American cases in this

connection, a bried analysis of some of the more recent decisions of this court

is advisable. For convenience the cases will be taken up in the note 3by

subjects. In all of them, Anglo-American decisions and authorities are used

and relied upon to a greater or less degree. Although in many cases the use is

by way of dictum, nevertheless, the net result is the building up of a very

substantial elaboration of Anglo-American case law.

From the foregoing selection of the more recent and typical cases, it appears

how broad is the scope of the use of Anglo-American authorities and

precedents in the field of law subjects affected by American derived

legislation. In the application of those statutes in the many cases which come

before the court, there is bound to be developed a substantial common law.

There is no question that this exists. We are merely concerned with its extent

and source.

CASES UNDER SPANISH STATUTES.

In addition to the subjects covered above, 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 fastenedupon the jurisprudence of this jurisdiction. An analysis of the cases,

particularly those of the later years, justifies completely the well-expressed

opinion of former Attorney-General Araneta quoted below:

We cannot say with certainty that the courts of the Philippine Islands

will, in the absence of a statute, be guided by the common law. It has

been said that the common law is expanded slowly and carefully by

judicial decisions based on a standard of justice derived from the

habits, customs, and thoughts of a people, and by this standard

doubtful cases are determined; that the office of the judge is not to

make the common law but to find it, and when it is found to affix to it

his official mark by which it becomes more certainly known and

authenticated. The announcement of the law comes from the courts

after they have had the benefit of the learning of counsel, which to be

comprehensive and useful must embrace a knowledge of the people

and their customs, as well as a knowledge of the principles

established by prior decisions. It is, therefore, reasonable to assume

that the courts of the Philippine Islands in cases not controlled by

statute will lay down principles in keeping with the common law,

unless the habits, customs, and thoughts of the people of these

Islands are deemed to be so different from the habits, customs, and

thoughts of the people of England and the United States that said

principles may not be applied here. (4 Op. Atty.-Gen. P.I., 510, 511.)

To illustrate the scope of the use of Anglo-American cases in connection with

the remaining Spanish statutes, a brief analysis4of the more recent cases

under a few of the principal subjects, will be appropriate. Frequently in these

cases reference to Anglo-American precedents is for the purpose of showing

that Spanish law and the Anglo-American law s the same, and frequently it is

for the purpose of amplifying or extending the Spanish statutes. In most cases

it is for the purpose of applying those statutes to the particular case before

the court; but whatever the use, the fact remains that through the influence of

these cases a broad exposition of American case law is made.

The last group of recent cases, which are but typical of many others in the

Reports, illustrates clearly the fact that Anglo-American case law plays a very


27/41

great part in amplifying and applying the law on those subjects which are still

governed by the remaining portions of the Spanish statutes.

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 part 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. The Philippine Common Law supplements

and amplifies our statute law.

COLLATERAL INFLUENCES.

This conclusion is further justified by the practical situation which has

surrounded the Bench and Bar of the Philippine Islands for many years and

which there is very reason to believe will continue unabated in the future.

This court his, in any increasing degree during the past twenty years, cited andquoted from Anglo-American cases and authorities in its decisions. The

following analysis of the citations of the last twenty volumes of the Philippine

Reports show this graphically.

Cases cited.

Volume. U.S. Philippines Spain England

20 ........................................ 207 63 21 1

21 ........................................ 217 127 10 3

22 ........................................ 273 73 21 5

23 ........................................ 211 181 18 4

24 ........................................ 194 108 19 1

25 ........................................ 143 98 24 226 ........................................ 257 104 23

27 ........................................ 145 132 25 1

28 ........................................ 145 130 24 3

29 ....

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