PERSONSTRANSCRIPT2013-1.pdf - THE FRATERNAL ORDER OF ST...

Unformatted text preview: THE FRATERNAL ORDER OF ST. THOMAS MORE PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas All about St. Thomas More: The following is taken from a 1519 letter in which Erasmus describes his good friend Thomas More: Thomas More rose from humble origins to achieve the highest political and judicial office of England, second only to that of the king. He was recognized throughout early sixteenth-century Europe as one of the great lawyers, Christian humanists, and classical scholars of his day. Even at a very early age, More gave clear evidence of his uncommon gifts. Because of this, a family friend successfully persuaded his father to allow him to attend Oxford University. More enjoyed his studies there that his father became alarmed. Two years into the program, he decided that his son should learn something useful. Under what seems to have been considerable coercion, Thomas returned to London to study law at New Inn. Although this law program was among the best and most demanding in London, More found time to continue his study of Greek, philosophy, literature, and theology with such world-renowned teachers as Linacre, Grocyn, and Colet, as well as with the pious and learned Carthusians. At 26 he was elected to Parliament; at 27 he married Jane Colt and fathered four children in the next five years. Jane died when More was 33. He married the best woman he knew, Alice Middleton, who had neither his interests nor his playful temperament and who was six or seven years his senior. With his gifts of intellectual genius and endearing wit plus his reputation for virtue, More was much sought after as a lawyer and diplomat. He was chosen, for example, by the London merchants to represent them on three major embassies to foreign countries. At the age of 32, he began his work as a judge, a position that made him well known and loved among the general London citizenry. After fifteen years of prosperous civic life, More was called to serve the King at court, a position he did not and would not seek out. Early on, he was well aware of the dangers of political life; he valued his freedom for family and writing, and he knew that giving up his lucrative law practice to enter public service would cost him a considerable portion of his income. Yet as a loyal citizen, More considered it the "duty of every good man" to contribute to the service of his country. Once in the King's service, More commanded Henry VIII's friendship and trust, serving primarily as his personal secretary, but with some administrative and diplomatic responsibilities. He rose steadily over the next ten years, finally becoming Chancellor in 1529, at the age of fifty-one. As Chancellor, More concentrated on two major tasks: (1) streamlining and improving the judicial system; (2) addressing and personally refuting errors which he considered seditious and destructive of both state and church. In fulfilling this latter task, he collected evidence which resulted in the execution of three persons. More was Chancellor for only thirty-one months. He resigned on May 16, 1532, the day after Henry VIII and Cromwell manipulated the Parliament to take away the traditional freedom of the Church, a freedom that had been written into English law since the Magna Carta. At issue was the survival of the Church as well as the nature of law and the scope of the state's legitimate authority. Imprisoned in the Tower of London for fifteen months before his execution, More was heavily pressured by his family and friends to sign the oath accepting Henry VIII as the Supreme Head of the Church in England. More steadfastly refused but never expressed animosity towards those who complied. During this time, he wrote a number of devotional and exegetical works, including A Dialogue of Comfort Against Tribulation, A Treatise on the Passion, and The Sadness of Christ . That More was God's servant first and foremost was readily seen in his life of prayer and penance. From the time he was a young man, More started each day with private prayer, spiritual reading, and Mass, regardless of his many duties. He lived demanding mortification in his characteristically discreet and merry manner. He generously cared for the poor and needy, and involved his own children in this same work. He had special devotion to the Blessed Sacrament, to frequent meditation on the Passion, and to the rosary. More was executed on July 6, 1535, and canonized on May 19, 1935. He has become a symbol of professional integrity, famous for the balanced judgment, ever-present humor, and undaunted courage that led him to be known, even in his own lifetime, as the “man for all seasons.” 2013 ACADEMICS COMMITTEE PAGE 1 THE FRATERNAL ORDER OF ST. THOMAS MORE PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas Message from the Professor: There are five steps to survive in law school: 1. Study, study, study and pray for enlightenment; 2. Read the cases in its entirety, do not rely on the hand-outs because these are for bar reviewers not for first year students; 3. Limit your report, if ever required, to the issue/s being discussed. Do not go beyond. 4. Do not be lovestruck by the words “certiorari”, “injunction”, “mandamus”, etc. because we are not concerned with these special actions; and 5. Discipline yourselves, no telenovelas; for the men – no NBA. Atty. Lydia Caballero-Galas Sigma Tau Mu Scroll No. 166 Professor – Persons and Family Relations Ateneo de Davao University College of Law 2013 ACADEMICS COMMITTEE PAGE 2 THE FRATERNAL ORDER OF ST. THOMAS MORE PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas REPUBLIC ACT NO. 386 THE CIVIL CODE OF THE PHILIPPINES INTRODUCTION Generally, law may be defined as an ordinance of reason promulgated for the common good by Him who is in charge. A law has to be promulgated to make it known to those who are expected to follow it. CLASSIFICATION OF LAW ACCORDING TO THE MANNER OF ITS PROMULGATION NATURAL LAW Natural Moral Law – this applies to our higher faculties (promulgated impliedly in our conscience and body) such as to do good and avoid evil Law of Nature – this applies to both our higher and lower faculties such as the law of gravity POSITIVE LAW (promulgated expressly or directly) Divine Positive Law such as 10 Commandments Divine-Human Positive Law (like the Commandments of the Catholic Church) Human Positive Law like Congressional Statutes or Executive Orders DEFINITION: HUMAN POSITIVE LAW In general, human positive law is a reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but not necessarily, imposing a sanction in case of disobedience. Law is a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit – SANCHEZ ROMAN Law is the body of rules governing the conduct of persons living in association with others, under the guaranty of social compulsion – DE PAGE ESSENTIAL ELEMENTS OF HUMAN POSITIVE LAW 1) Reasonable rule of action. 2) Due promulgation. 3) Promulgation by competent authority. 4) Generally, a sanction imposed for disobedience. CLASSIFICATION OF HUMAN POSITIVE LAW 1. According to whether a right is given, or merely the procedure for enforcement is laid down: a. Substantive law – that which establishes rights and duties. b. Remedial (or procedural or adjective) law – that which prescribes the manner of enforcing legal rights and claims. 2. According to the scope or content of the law: a. Private law – that which regulates the relations of the members of a community with one another. b. Public law – that which governs the relations of the individual with the State or ruler or community as a whole. 3. According to force or effect: 2013 ACADEMICS COMMITTEE PAGE 3 THE FRATERNAL ORDER OF ST. THOMAS MORE a. b. PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas Mandatory (absolute, imperative) and/or Prohibitive laws – those which have to be complied with, because they are expressive of public policy; disobedience is punished either by direct penalties or by considering an act or contract void. Permissive (or suppletory) laws – those which may be deviated from, if the individual so desires. DEFINITION: CIVIL LAW The word ‘civil’ is derived from the Latin word “civiles,” a citizen, as distinguished from a savage or barbarian. a) It is that branch of the law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligations and contracts. b) It is that mass of precepts that determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private interests. c) It is that branch of law that governs the relation of the members of the community with one another. DEFINITION: CIVIL CODE It is defined as a collection of laws which regulate the private relation of the members of civil society, determining their respective rights and obligations, with reference to persons, things and civil acts. CIVIL LAW VS. CIVIL CODE A Civil Code is a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and sub-heads and promulgated by legislative authority; whereas, civil law is a mass of precepts that determine or regulate the relations that exist between members of a society for the protection of private interests. Most of our civil laws are found in the Civil Code but the Civil Code is not the only repository of our civil laws. There are also other civil laws which are not embodied in our Civil Code such as the Family Code and the Child and Youth welfare Code. The Civil Law is wider in concept than the Civil Code. The Civil Code is part of the Civil Law, but not all civil laws are part of the Civil Code. CIVIL LAW VS. POLITICAL LAW While civil law governs the relations of the members of the community with one another, political law deals with the relations of the people and the government. 2013 ACADEMICS COMMITTEE PAGE 4 THE FRATERNAL ORDER OF ST. THOMAS MORE PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas PRELIMINARY TITLE CHAPTER I EFFECT AND APPLICATION OF LAWS Article 1. This Act shall be known as the "Civil Code of the Philippines." (n) SOURCES OF THE CIVIL CODE 1) Spanish Civil Code of 1889 2) The Philippine Constitution of 1935 3) Statutes or laws (Philippine, American, European) 4) Rules of Court (local or foreign) 5) Decisions of local tribunals (particularly the Supreme Court) 6) Decisions of foreign tribunals, comments and treatises of foreign jurists 7) Filipino customs and traditions 8) General principles of law and equity 9) Report of the Code Commission Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. This Code shall take effect one year after such publication. (1a) In the case of Lara v. Del Rosario, the Supreme Court in an obiter dictum held that the Civil Code of the Philippines took effect on August 30, 1950. This date is exactly one year after the Official Gazette publishing the Code was released for “circulation,” the said release having been made on August 30, 1949. Old Civil Code Provision: Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. Under the new amendment (Executive Order No. 200), aside from the Official Gazette (OG), publication may now be made through a newspaper of general circulation. A newspaper is considered of general circulation if its circulation is made within the court’s jurisdiction, published at regular intervals for the dissemination of local news and general information, with bona fide subscription list of paying subscribers and if it is not devoted to the interest or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. WHAT LAWS NEED PUBLICATION? All statutes, including those of local application and private laws shall be published as a condition for their effectivity. Central Bank Circular which is punitive in character and issued for the implementation of the law authorizing its issuance for it has the force and effect of law. An Executive Order which is punitive in character cannot be enforced before its publication. Internal instructions of Administrative Agencies are not covered by the requirement of publication. Also, municipal ordinances are not covered by this rule but by the Local Government Code. WHEN DO LAWS BECOME EFFECTIVE? It depends on whether or not the law has provided a specific date for its effectivity: No date – after 15 days following the completion of its publication in the OG or newspaper of general circulation. 2013 ACADEMICS COMMITTEE PAGE 5 THE FRATERNAL ORDER OF ST. THOMAS MORE PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas With specific date – ex. one year after publication, it becomes effective only upon the lapse of said period following its complete publication and not before. provides for immediate effectivity upon approval – becomes effective only after its complete publication and not immediately after its signing by the President The publication of the law must be FULL or COMPLETE, otherwise, there is no publication to be considered since its purpose is to inform the public of the full contents of the law. “UNLESS OTHERWISE PROVIDED” – this phrase refers to the date of the effectivity of laws and not to the requirement of publication. Publication is indispensable (Tañada v. Tuvera). In other words, no law can become immediately effective upon approval without publication. TAÑADA VS. TUVERA G.R. No. L-63915 December 29, 1986 FACTS: Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows: WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. The petitioners are now before us to move for reconsideration/clarification of that decision. ISSUES: 1. What is meant by "law of public nature" or "general applicability"? 2. Must a distinction be made between laws of general applicability and laws which are not? 3. What is meant by "publication"? 4. Where is the publication to be made? 5. When is the publication to be made? HELD: The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people only, and t to the public as a whole. All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. The following are statutes that should be published: 1. presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution 2. administrative rules and regulations if their purpose is to enforce or implement existing law pursuant to a valid delegation 2013 ACADEMICS COMMITTEE PAGE 6 THE FRATERNAL ORDER OF ST. THOMAS MORE 3. 4. PERSONS & FAMILY RELATIONS Atty. Lydia C. Galas the charter of a city the circulars issued by the Monetary Board if they are meant not merely to interpret but to “fill in the details” of the Central Bank Act which that body is supposed to enforce Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Moreover, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteenday period shall be shortened or extended. It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern them. Those concerned would fail to comply because they did not know of its existence Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. Under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazette and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature. Publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the said Article 2. The clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication. DE ROY VS. COURT OF APPEALS 157 SCRA 757 FACTS: The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. The court rendered judgment finding petitioners guilty of gr...
View Full Document