B.
JUDICIAL LEGISLATION
TYPES OF LEGAL SYSTEMS
The Philippine legal system is a mixture of customary usage, Roman (civil law) and Anglo-American (common
law) systems, and Islamic law. The legal system is the result of the immigration of Muslim Malays in the
fourteenth century and the subsequent colonization of the islands by Spain and the United States.
A. MODERN DAY SYSTEMS:
a. CIVIL LAW
➢ The most widespread type of legal system in the world, applied in various forms in approximately
150 countries. Also referred to as European continental law, the civil law system is derived mainly
from the Roman Corpus Juris Civilus, (Body of Civil Law), a collection of laws and legal
interpretations compiled under the East Roman (Byzantine) Emperor Justinian I between A.D. 528
and 565. The major feature of civil law systems is that the laws are organized into systematic written
codes. In civil law the sources recognized as authoritative are principally legislation - especially
codifications in constitutions or statutes enacted by governments - and secondarily, custom. The
civil law systems in some countries are based on more than one code.
➢ Includes Spanish Law, Roman Law, French Law, Roman-Dutch Law
➢ Operates in areas such as Family Relations, Property, Succession, Contracts and Criminal Law
b. COMMON LAW
➢ A type of legal system, often synonymous with "English common law," which is the system of
England and Wales in the UK, and is also in force in approximately 80 countries formerly part of or
influenced by the former British Empire. English common law reflects Biblical influences as well as
remnants of law systems imposed by early conquerors including the Romans, Anglo-Saxons, and
Normans. Some legal scholars attribute the formation of the English common law system to King
Henry II (r.1154-1189). Until the time of his reign, laws customary among England's various manorial
and ecclesiastical (church) jurisdictions were administered locally. Henry II established the king's
court and designated that laws were "common" to the entire English realm. The foundation of
English common law is "legal precedent" - referred to as stare decisis, meaning "to stand by things
decided." In the English common law system, court judges are bound in their decisions in large part
by the rules and other doctrines developed - and supplemented over time - by the judges of earlier
English courts.
➢ Includes English Common Law, United States Law
➢ Evident in Constitutional Law, Procedure, Corporation Law, Negotiable Instruments, Taxation,
Insurance, Labor Relations, Banking and Currency
c. RELIGIOUSLY-ORIENTED:
➢ A type of legal system which stems from the sacred texts of religious traditions and in most cases
professes to cover all aspects of life as a seamless part of devotional obligations to a transcendent,
imminent, or deep philosophical reality. Implied as the basis of religious law is the concept of
unalterability, because the word of God cannot be amended or legislated against by judges or
governments. However, a detailed legal system generally requires human elaboration.
CANON LAW
➢ Canon law is not a divine law as such because it is not found in revelation. It is viewed instead as
human law inspired by the word of God and applying the demands of that revelation to the actual
situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church,
the Eastern Orthodox Church, and the Anglican Communion.
SHARIA LAW, ETC.
➢ Islamic law is embodied in the sharia, an Arabic word meaning "the right path." Sharia covers all
aspects of public and private life and organizes them into five categories: obligatory,
recommended, permitted, disliked, and forbidden. The primary sources of sharia law are the
Qur'an, believed by Muslims to be the word of God revealed to the Prophet Muhammad by the
angel Gabriel, and the Sunnah, the teachings of the Prophet and his works. In addition to these
two primary sources, traditional Sunni Muslims recognize the consensus of Muhammad's
companions and Islamic jurists on certain issues, called ijmas, and various forms of reasoning,
including analogy by legal scholars, referred to as qiyas. Shia Muslims reject ijmas and qiyas as
sources of sharia law.
Chua - LegRes
SILVERIO V. REPUBLIC OF THE PHILIPPINES
Rommel Jacinto Dantes SILVERIO is a male transsexual which means he’s a biological male who feel
trapped in a male body. Hence, he sought gender reassignment in Thailand to transform himself to a
“woman” which was successful. From then on, he lived as a female and was engaged to an American.
So, he petitioned to have his (1) name changed (from Rommel Jacinto to Mely) and (2) his sex from male
to female in his birth certificate. The case was published for 3 weeks and the order was also sent to the
OSG and CR. However, no opposition was made. RTC granted his petition based on equity. Because,
Silverio’s misfortune “to be trapped in a man’s body” was not his own doing. Thus, it should not be taken
against him. Also, no prejudice or injury will be caused to anybody. On the other hand, granting said
petition would bring happiness to Silverio and “her” fiancé. Subsequently, OSG petitioned before the CA,
and CA reversed RTC’s decision.
SC ruled that neither entries may be changed on ground of equity
According to SC, RTC’s ruling amounts to Judicial Legislation. The changes Silverio sough will have serious
legal and public policy consequences:
First, by granting said changes the laws on marriage and family relations will substantially be reconfigured
and greatly altered because it will allow the union of a man with another man who has under sex
reassignment.
Second, there are various laws which apply particularly to women (LC on employment of women, RPC,
presumption of survivorship). Said laws underscore public policy in relation to women which could be
affected if said petition were to be granted.
ART. 9 of the Civil Code mandates the no Judge/court shall decline to render judgment by reason of
silence/insufficiency/obscurity of the law. However, it is not a license for courts to engage in judicial
legislation. Court’s duty is to apply/interpret law, not to make or amend it. Hence, if legislature intends to
confer a person who underwent sex reassignment the privilege to change his name and sex, it has to
enact legislation laying down the guidelines governing said privilege.
LEGAL SOURCES
1. CLASSIFICATION BY AUTHORITY
➢ Authority is that which may be cited in support of action, theory or hypothesis.
A. PRIMARY AUTHORITY
➢ Only authority that is binding on the courts.
➢ Sources of law which includes the Constitution, statutes passed by Congress, SC and court
decisions, Executive and Presidential issuances, ordinances and rules and regulation of
Government agencies, and Treaties (Actual laws promulgated by 3 branches)
a. PRIMARY MANDATORY AUTHORITY
➢ Law created by the jurisdiction in which the law operates, like the Philippines.
b. PERSUASIVE MANDATORY AUTHORITY
➢ Law created by other jurisdictions but which have persuasive value to our courts (e.g. Spanish and
American laws and jurisprudence).
➢ Used when there are no PH authorities available or PH statute/jurisprudence is based on either
Spanish or American Law.
B. SECONDARY AUTHORITY
➢ These are commentaries or books, treatise, writings and journal articles that explain, discuss or
comment on primary authorities (Reputation of the author is a consideration). It also includes
opinions of DOJ, SEC, BSP.
➢ Not binding on courts, but they have persuasive effect.
2. CLASSIFICATION BY SOURCE
A. PRIMARY SOURCES
1
 ➢ Those published by the issuing agency itself or published by the Official Gazette.
For Statutes = Official Gazette and Laws and Resolutions published by Congress
For SC Decisions = Philippine Reports, Advanced Supreme Court Decisions, and Official Gazette
B. SECONDARY SOURCES
➢ These are unofficial sources and generally referred to as those commercially or institutionally
published in print or online
SC held that President, Congress and the Court cannot directly create franchises, exclusive in character, for
the operation of a public utilities because the Constitution prohibits it. The 1935, 1973 and 1987 Constitutions
expressly prohibit the creation of the franchises exclusive in character (“Nor shall such franchise be exclusive
in character.”), and there is no exception. What the President, Congress and Court cannot create directly,
cannot be done indirectly. Thus, they cannot indirectly create franchises exclusive in character by directly
allowing the Board of Directors of water district and the Local Water Utilities Administration to do so under PD
198. Under the doctrine of Constitutional Supremacy, in case of conflict between the Constitution and a
statute, the Constitution always prevails because the same is basic law which all other laws must conform to.
B. TREATIES AND INTERNATIONAL AGREEMENTS

➢ Vital Legal Documents published by Central Books (Compilation of Pres. Decrees), Public Laws
Annotated (compilation of laws from 1901-1935), Supreme Court Reports Annotated (SCRA)
GR: absent of primary source, secondary source may be cited. (Reason for SCRA’s popularity)
➢ Policy Re digitized sources: In case of conflict between printed and electronic sources, printed
version form issuing government agency prevails.
a. SECTION 2, ARTICLE II OF THE 1987 PHILIPPINE CONSTITUTION
Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
b. BAYAN MUNA V. ALBERTO ROMULO, G.R. NO. 159618, 1 FEBRUARY 2011

3. STATUTORY LAW The Rome Statute established the International Criminal Court with jurisdiction over persons for the crimes
considered grave under international law (genocide, crimes against humanity, war crimes, and crimes of
➢ Rules and regulations promulgated by competent authorities aggression). In 2000, The RP through Charge d’Affaires Manalo signed the Rome Statute which was subject to
ratification, acceptance and approval of the signatory states to which PH did not appear to have completed
A. THE 1987 CONSTITUTION OF THE PHILIPPINES said process. In 2003, US Ambassador Ricciardone sent US Embassy Note to DFA proposing terms of the RP-US
Non-Surrender Agreement. Via EXCHANGE OF NOTES, RP, represented by DFA Sec Ople, accepted US
Philippines recognizes the following Constitutions:
proposals in the US Embassy Note and put in effect the Agreement which aims to protect “PERSOSNS”
(government officials, employees, military personnel of the RP and US from suits in international tribunals. Hence,
1. Malolos Constitution
the petition.
2. 1935 Constitution
RP-US BILATERAL AGREEMENT VALID.
3. 1943 Constitution (Only effective during the WWII.)
Agreement does not contravene Rome Statute, but complements it. The Rome Statute expressly recognizes
the primary jurisdiction of states over serious crimes committed within their borders. ICC will only come in when
4. 1973 Constitution
signatory states are unwilling or unable to prosecute.
5. 1986 Constitution/Provisional/ Freedom Constitution (Only effective from time President Cory became
Under the Vienna Convention, a state party is different from a signatory. The latter is only obliged to refrain
President until the 1987 Constitution was ratified.)
from acts which would defeat the object of the treaty which the Ph is. It is not a state party for lack of
6. 1987 Constitution ratification by Senate.

The right of the Executive to enter into binding agreements with Congress approval has ben long used.
a. PREAMBLE

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane
society and establish a Government that shall embody our ideals and aspirations, promote the common
good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of
independence and democracy under the rule of law and a regime of truth, justice, freedom, love,
equality, and peace, do ordain and promulgate this Constitution.
b. ARTICLE 7, CIVIL CODE
Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused
by disuse, or custom or practice to the contrary.
Petitioner argues that the agreement be struck for violating recognized principles of international law because
it leaves criminals immune to responsibility, precludes the PH from delivering an AM criminal to the ICC.
➢ Court ruled that the Agreement is an assertion of the PH’s desire to try and punish crimes under its
national law. It is a recognition of the primacy and competence of the country’s judiciary to try
offenses under its laws. Also, persons who may have committed acts penalized under the Rom
Statute can be punished in the PH or US or with consent of both, before the ICC, assuming that all
formalities necessary to bind both countries to the Rome Statue have been met.
➢ What the Agreement prohibits is the surrender of either party of individuals to international tribunals
without consent. Hence, there was nothing violative of such.

When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the SC ruled that exchange of notes is a valid. It falls into the CATEGORY OF INTER-GOVERNMENTAL AGGREEMENTS
latter shall govern. which is an internationally accepted form of international agreement.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to EXCHANGE OF NOTES has been defined as a routine agreement similar to a private law contract. It consists of
the laws or the Constitution the exchange of 2 documents, each parties being in possession of one signed by the representative of the
other. It is resorted to either because of its speedy procedure to to avoid process of legislative approval. Also,
c. TAWANG MULTI-PURPOSE COOPERATIVE (TMPC) V. LA TRINIDAD WATER DISTRICT (LTWD) exchange of notes and EA have been used interchangeable.

TMPC is a cooperative organized to provide domestic water services in Brgy. Tawang La Trinidad, Benguet.
LTWD is a local water utility created under PD 198 to supply domestic, industrial and commercial water within
the municipality of La Trinidad. Later, TMPC filed an application with NWRB to operate and maintain a C. CONGRESSIONAL STATUTES
waterworks system in Brgy. Tawang. LTWD opposed this and claimed that its franchise is exclusive under PD
198. However, NWRB held that said franchise cannot be exclusive because exclusive franchises are a. SECTION 26(2), ARTICLE VI OF THE 1987 PHILIPPINE CONSTITUTION
unconstitutional. Also, it found that TMPC is legally qualified to operate the waterworks system. LTWD appealed
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days,
to RTC, and the latter ruled in LTWD’s favor and held that it is an exclusive franchise with a privilege to exclude
and printed copies thereof in its final form have been distributed to its Members three days before its passage,
others. However, SC curled in the contrary.
except when the President certifies to the necessity of its immediate enactment to meet a public calamity or
Constitution Prohibits Franchise Exclusive In Character (Apply Art. 7)
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emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon
Acts Philippine Commission/Legislature Cong. Henry Cooper approved the
shall be taken immediately thereafter, and the yeas and nays entered in the Journal.
Act to end the PH-AM War.
(PH Organic Acts/PH
GR: Bill cannot become law unless:
Autonomy Act) Jones Law replaced Cooper Act and
1. It passed three readings on separate days, and acted as constitution of the PH.

2. Printed copies thereof in its final form have been distributed to its Members three days before its Commonwealth Acts National Assembly Tydings-Mcduffie Act established PH
passage as an independent country.

XPN: When the President certifies to the necessity of its immediate enactment to meet a public calamity or
emergency Presidential Decrees Philippine Congress Marcos during Martial Law allowed
PDs to make changes
a. SECTION 27, ARTICLE VI OF THE 1987 PHILIPPINE CONSTITUTION
Batas Pambansa National Assembly Marcos in 1973 Constitution
Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves
the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where
it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such Republic Acts Philippine Congress Aquino in 1987 Constitution
reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together
with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-
thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall
be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its
D. LOCAL ORDINANCES AND RESOLUTIONS
Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days
after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. a. SECTION 1, ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION
WAYS PRESIDENT ACTS ON THE BILL The territorial and political subdivisions of the Republic of the Philippines are the (1) provinces, (2) cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
1. Approved – Once, approved, it becomes a Republic Act and takes effect 15 days after Cordilleras as hereinafter provided.
publication in the Official Gate or newspapers of general circulation;
2. Vetoed – The Bill is returned to the originating house with an explanation why it was vetoed. House b. SECTION 2, ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION
can either accept the veto or override it with 2/3 (majority) vote, after which takes effect 15 days
after complete publication; and SECTION 2. The territorial and political subdivisions shall enjoy local autonomy.
3. Lapsed into law – it lapses when the President fails to act on the bill (veto or approve) within 30
days after receiving the bill. Takes effect 15 days after complete publication. E. RULES AND REGULATIONS

b. TAÑADA V. TUVERA, G.R. NO. 63915, 24 APRIL 1985 a. VICTORIAS MILLING CO., INC. V. SOCIAL SECURITY COMMISSION, G.R. NO. L-16704, 17 MARCH 1962

Tañada, et al, sought a writ of mandamus to compel respondent public officials to publish or cause the b. NATIONAL FEDERATION OF SUGAR WORKERS V. OVEJERA, G.R. NO. L-59743, 31 MAY 1982
publication, in the Official Gazette, of various presidential decrees, letters of instructions, general order,
proclamations, EOs, and administrative order as a right to be informed on matters of public concern
recognized under the Constitution.

The Court ruled that such publication is needed. Art. 2 of the Civil Code provides that law shall take effect
after 14 days following the completion of its publication in the Official Gazette, unless it is otherwise provided.
Court ruled that publication in the OG is necessary in cases where legislation itself does not provide for its
effectivity date. The publication requirement cannot be dispensed with even if the law provides for its
effectivity date.

The publication of all presidential issuances of a PUBLIC nature or of GENERAL application is mandated.
However, presidential issuances which apply only to particular persons or class need not be published on the
assumption that they have been circularized to all concerned.

c. TYPES OF LEGISLATIVE ENACTMENTS: ACTS, COMMONWEALTH ACTS, PRESIDENTIAL DECREES, BATAS

PAMBANSA, REPUBLIC ACTS

LEGISLATIVE BODY ORIGIN

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