Sources of Law

2 Primary Sources of Law

Statutes or statutory law Jurisprudence or case law

Statutes or statutory law Statutes are defined as the written enactment of the will of the legislative branch of the government rendered authentic by certain prescribed forms or solemnities are more also known as enactment of congress. Generally they consist of two types, the Constitution and legislative enactments. In the Philippines, statutory law includes constitutions, treaties, statutes proper or legislative enactments, municipal charters, municipal legislation, court rules, administrative rules and orders, legislative rules and presidential issuance.

Jurisprudence - or case law Cases decided or written opinion by courts and by persons performing judicial functions. Also included are all rulings in administrative and legislative tribunals such as decisions made by the Presidential or Senate or House Electoral Tribunals.

 For Muslim law, the primary sources of Shariah are Quran, Sunnaqh, Ijma and Qiyas. Jainal D. Razul in his book Commentaries and Jurisprudence on the Muslin Law of the Philippines (1984) further stated there are new sources of muslim law, which some jurists rejected such as Istihsan or juristic preference; AlMasalih, Al Mursalah or public interest; Istidlal (custom) and Istishab. (deduction based on continuity or permanence).

Classification of Legal Sources

Primary Authority is the only authority that is binding on the courts. "Authority is that which may be cited in support of an action, theory or hypothesis." Legal materials of primary authority are those that contain actual law or those that contain law created by government.

 Each of the three branches of government: Legislative, Executive and Judiciary, promulgates laws. The legislature promulgates statutes, namely: Act, Commonwealth Act, Republic Act, Batas Pambansa. Executive promulgates presidential issuances (Presidential Decrees, Executive Orders, Memorandum Circular, Administrative Orders, Proclamations, etc.), rules and regulations through its various departments, bureaus and agencies. The Judiciary promulgates judicial doctrines embodied in decisions.

 We however need to clarify that the Presidential Decrees or law issued by President Ferdinand E. Marcos during Martial Law and Executive Orders issued by Aquino President Corazon C. Aquino before the opening Congress in July 1987 can be classified as legislative acts, there being no legislature during these two periods.

Primary Authority or sources may be further subdivided into:

Mandatory primary authority is law created by the jurisdiction in which the law operates like the Philippines; Persuasive mandatory authority is law created by other jurisdictions but which have persuasive value to our courts e.g. Spanish and American laws and jurisprudence.
These sources as used specially when there are no Philippine authorities available or when the Philippine statute or jurisprudence under interpretation is based on either the Spanish or American law.

 It is in this regard that the collections of law libraries in the Philippines include United States court reports, West's national reporter system, court reports of England and international tribunal, important reference materials such as the American Jurisprudence, Corpus Juris Secundum, Words and Phrases and different law dictionaries. Some of these law libraries subscribe to the Westlaw and/or LexisNexis. The Supreme Court , University of the Philippines, University of Santo Tomas and a number of prominent law libraries also have a Spanish collection where a great number of our laws originated.

Secondary authority or sources

Commentaries or books, treatise, writings, journal articles that explain, discuss or comment on primary authorities. Also included in this category are the opinions of the Department of Justice, Securities and Exchange Commission or circulars of the Bangko Sentral ng Pilipinas. These materials are not binding on courts but they have persuasive effect and/or the degree of persuasiveness.

Secondary authority or sources

With regards to commentaries or books, treatise, writings, journal articles, the reputation or expertise of the author is a consideration. Some of the authors of good reputation and considered experts in the field are
Chief Justice Ramon C. Aquino and Justice Carolina Grino Aquino on Revised Penal Code or Criminal Law, Senator Arturo M. Tolentino on Civil law, Chief Justice Enrique M. Fernando and Fr. Joaquin Bernas on Constititional Law, Prof. Perfecto Fernandez on Labor Law, Vicente Francisco, Chief Justice Manuel Moran on Remedial Law, and Justice Vicente Abad Santos and Senator Jovito Salonga on International Law, etc.

Classification by Source
It is important for legal research experts to know the source where the materials were taken. One has to determine whether they came from primary (official) sources or secondary (unofficial sources).

Primary sources
Those published by the issuing agency itself or the official repository, the Official Gazette. Thus, for Republic Acts and other legislative enactments or statutes, the primary sources are the Official Gazette published by the National Printing Office and the Laws and Resolutions published by Congress. For Supreme Court decisions, the primary sources are the Philippine Reports, the individually mimeographed Advance Supreme Court decisions and the Official Gazette. Publication of Supreme Court decisions in the Official Gazette is selective. Complete court reports for Supreme Court decisions is the Philippine Reports.

Secondary Sources
The unofficial sources and generally refer to those commercially published or those that are not published by government agencies or instrumentalities. Some of the Secondary sources of statutes are the Vital Legal Documents, published by the Central Book Supply, contains a compilation of Presidential Decrees (1973). The second edition contains Republic Acts. Prof. Sulpicio Guevara published three books which contains the full text of legislative enactments or laws namely:
a). Public Laws Annotated (7 vols.) , compilation of all laws from 1901 to 1935, b). Commonwealth Acts Annotated (3vos.). compilation of laws from 1935-1945 c). The Laws of the First Philippine Republic (The Laws of Malolos) 1898-1899.

Secondary Sources
For the Supreme Court decisions, Supreme Court Reports Annotated (SCRA), a secondary source, published by the Central Book Supply is more updated and popular in the legal community than the Philippine Reports, the primary and official source. Citations in commentaries or books, treatise, writings, journal articles, pleading and even court decisions show SCRA's popular acceptance. The general rule is that in the absence of a primary source, the secondary source may be cited. This was the primary rationale for the SCRA's popularity.

Secondary Sources
There was no primary source for complete compilation of Supreme Court decisions for more than twenty (20) years. The publication of the Philippine Reports by the National Printing Office ceased in 1960s. It was only in 1982 when the publication of the Philippine Reports was revived by then Chief Justice Enrique M. Fernando who requested then President Ferdinand E. Marcos to take charge of its publication with special appropriation in the Judiciary's annual budget.

 With the advent of the new information technology, electronic or digitized sources are popular sources of legal information for the following reasons:
a) updated legal information is readily available b) the search engines used facilitate research, and c) no complete and update manually published search tools for statute and case law

These electronic sources are in the forms of CD ROMS, online or virtual libraries, or the websites of the issuing government agency or instrumentality. In case of conflict between the printed and electronic sources, the printed version coming from the issuing government agency prevails. This policy prevails even for the Supreme Court E-Library where it is explicitly provided in its website

Sources published in newspapers

In the Philippines, the problem is how to classify sources published in the newspapers. Since 1987, based on the definition of primary and secondary source, they may be considered as primary sources pursuant to Executive Order No. 200, s. 1987 which provides that laws become effective fifteen (15) days after publication in the Official Gazette or in two newspapers of general circulation. In case of conflict between the two versions, the version of the Official Gazette holds.

How to find the law

In finding the law, our ultimate goal is to locate mandatory primary authorities which have bearing on the legal problem at hand. If these authorities are scarce or nonexistent, our next alternative is to find any relevant persuasive mandatory authority. If our search is still negative, the next alternative might be secondary authorities. There are however instances where the secondary authorities, more particularly the commentaries made by experts of the field, take precedence over the persuasive mandatory authorities. With the availability of both, using both sources is highly recommended.

Research of Statute law

Statute laws are the rules and regulations promulgated by competent authorities; enactments of legislative bodies (national or local) or they may be rules and regulations of administrative (departments or bureau) or judicial agencies. Research of statutory law does not end with consulting the law itself. At times it extends to the intent of each provision or even the words used in the law.

Constitution
The different Constitutions of the Philippines are provided in some history books such as Gregorio F. Zaide's Philippine Constitutional History and Constitutions of Modern Nations (1970) and Founders of Freedom; The History of Three Constitution by a seven-man Board. The Philippine legal system recognizes the following Constitutions: Malolos, 1935, 1973, Provisional or Freedom and 1987 Constitutions.

Constitution
Text of the Malolos Constitution is available in some history books such as Gregorio F. Zaide's Philippine Constitutional History and Constitutions of Modern Nations, p. 176 (1970). For the rest of the above mentioned Constitutions, the texts are available in published Philippine constitutional law books. Full text of these Constitutions is available at the Supreme Court E-Library.

ConCon Proceedings
The Constitutional Convention proceedings provide for the intent and background of each provision of the Constitution. Sources for the 1934-1935 Constitutional Convention are:
10 volumes of the Constitutional Convention Record by the House of Representatives (1966), Salvador Laurel's seven volumes book entitled Proceedings of the Constitutional Convention (1966); 6 volumes of the Philippine Constitution, Origins, Making, Meaning and Application by the Philippine Lawyers Association with Jose Aruego as one of its editors (1970) and Journal of the Constitutional convention of the Philippines by Vicente Francisco.

ConCon Proceedings
Proceedings of the 1973 Constitutional Convention were never published. A complete compilation is available at the Filipiniana Reading Room of the National Library of the Philippines. Journals (3 volumes) and Records (5 volumes) of the Constitutional Convention of 1986 were published by the Constitutional Commission.

Constitution
Commentaries or interpretations on the constitution, decisions of the Supreme Court and other courts, textbooks or treaties, periodical articles of the different Constitution are available.

Treaties and other International Agreements

A treaty is an agreement or a contract between two (bilateral) or more (multilateral) nations or sovereigns, entered into by agents appointed (generally the Secretary of Foreign Affairs or ambassadors) for the purpose and duly sanctioned by supreme powers of the respective countries. Treaties that do not have legislative sanctions are executive agreements which may or may not have legislative authorization, and which have limited execution by constitutional restrictions.

Treaties and other International Agreements

In the Philippines, a treaty or international agreement shall not be valid and effective unless concurred in by at least two-thirds of all members of the Senate (Constitution, Article VII, section 21). Those without the concurrence of the Senate are considered as Executive Agreements.

Treaties and other International Agreements

The President of the Philippines may enter into international treaties or agreements as the national welfare and interest may require, and may contract and guarantee foreign loans on behalf of the Republic, subject to such limitations as may be provided by law. During the time of Pres. Marcos, there was the socalled Tripoli Agreement.

Treaties and other International Agreements

The President of the Philippines may enter into international treaties or agreements as the national welfare and interest may require, and may contract and guarantee foreign loans on behalf of the Republic, subject to such limitations as may be provided by law. During the time of Pres. Marcos, there was the socalled Tripoli Agreement.

Treaties and other International Agreements

The official text of treaties is published in the Official Gazette, Department of Foreign Affairs Treaty Series (DFATS), United Nations Treaty Series (UNTS) or the University of the Philippines Law Center's Philippine Treaty Series (PTS). To locate the latest treaties, there are two possible sources: Department of Foreign Affairs and the Senate of the Philippines. There is no complete repository of all treaties entered into by the Philippines. There is a selective publication of treaties in the Official Gazette. The DFATS was last published in the 1970s while the PTS's last volume, vol. 8 contains treaties entered into until 1981. With the UN Treaty Series, it is available only in UN depository libraries in the country and its United Nation Information Center in Makati.

Treaties and other International Agreements

For tax treaties Eustaquio Ordoo has published a series on the Philippine tax treaties. Other sources of important treaties are appended in books on the subject or law journals such as the American Journal of International Law or the Philippine Yearbook of International Law.

Treaties and other International Agreements

To locate these treaties, the Foreign Service Institute published the Philippine Treaties Index (1946-1982) and UN Multilateral Treaties Deposited with the Secretary General. Electronically, major law libraries use the Treaties and International Agreements Researchers Archives (TIARA), WESTLAW, LEXIS, other online sources and the Internet.

Statutes Proper (Legislative Enactments)

Statutes are enactments of the different legislative bodies since 1900 broken down as follows:
4,275 ACTS - Enactments from 1900-1935 733 Commonwealth Acts - Enactments from 1935-1945 2034 Presidential Decrees - Enactments from 1972-1985 884 Batas Pambansa. - Enactments from 1979-1985 9492 Republic Acts - Enactments from 1946-1972, 1987July 2007

Statutes Proper (Legislative Enactments)

The above figures clearly show that during Martial Law, both President Marcos and the Batasang Pambansa (Parliament) were issuing laws at the same time in the Presidential Decrees (by President Marcos ) and Batas Pambansa (Parliament)

During Martial Law, aside from Presidential Decrees, the President promulgated other issuances namely: 57 General Orders, 1,525 Letters of Instruction, 2,489 Proclamations, 832 Memorandum Order, 1,297 Memorandum Circular, 157 Letter of Implementation, Letter of Authority, Letters of Instruction, 504 Administrative Order and 1,093 Executive Orders.

Statutes Proper (Legislative Enactments)

As previously stated, the Presidential Decrees issued by Pres. Marcos during Martial Law and the Executive Orders issued by Pres. Aquino before the opening of Congress may be classified as legislative acts for there was no legislature during those two periods. Laws passed by the new 1987 Congress started from Rep. Act No. 6636, as the last Republic Act promulgated by Congress before Martial Law was Rep. Act No. 6635.

Statutes Proper (Legislative Enactments)

The following are the Philippine codes adopted from 1901 to present:
Child and Youth Welfare Code Civil Code Comprehensive Agrarian Reform Code Coconut Industry Code Code of Commerce Cooperative Code Corporation Code Family Code Fire Code Forest Reform Code Intellectual Property Code

Statutes Proper (Legislative Enactments)

The following are the Philippine codes adopted from 1901 to present:
Labor Code Land Transportation and Traffic Code Local Government Code Muslim Code of Personal Laws National Building Code National Code of Marketing of Breast-milk Substitutes and Supplements National Internal Revenue Code Omnibus Election Code Philippine Environment Code Revised Administrative Code Revised Penal Code Sanitation Code State Auditing Code Tariff and Customs Code Water Code

Executive Orders
Administrative acts, orders and regulations of the President touching on the organization or mode of operation of the government, re-arranging or adjusting districts, divisions or parts of the Philippines, and acts and commands governing the general performance of duties of public officials and employees or disposing of issues of general concern are made effective by Executive Orders. Those orders fixing the dates when specific laws, resolutions or orders cease to take effect and any information concerning matters of public moment determined by law, resolution or executive orders, take the form of executive Proclamation.

Executive Orders
Executive Orders and Proclamations of the GovernorGeneral were published annually in a set Executive Orders and Proclamations. Thirty three (33) volumes were published until 1935 by the Bureau of Printing. Administrative Acts and Orders of the President and Proclamations were published. Only a few libraries in the Philippines have these publications for the majority were destroyed during World War II. There are copies available at the Law Library of Congress, Cincinnati Law Library Association (who offered to donate them to the Supreme Court of the Philippines) and some at the Library of the Institute of South East Asian Studies in Singapore.

How to research
In researching for Proclamations, Administrative Orders, Executive Orders and Memorandum Orders & Circulars of the President, the year it was promulgated is a must, or if no year is available, the President issuing it must be stated. As a new President is sworn in, all the Presidential issuances start with No. 1. The only exception was Executive Orders issued by President Carlos Garcia after he assumed the Presidency because President Magsaysay died in a plane crash. He continued the number started by President Magsaysay. When President Garcia was elected President, he started his Executive Order No. 1.

Legislative Intent
To look for the intent of Republic Acts, we have to go through the printed Journals and Records of both houses of Congress which contain their deliberation. To facilitate the search, the House Bill No. or Senate Bill No. or both found on the upper left portion of the first page of the law is important. The proceedings of the House of Representatives and the Philippine Senate are now available on their websites. The Batasang Pambansa has likewise published it proceedings. There are no available proceedings for the other laws Acts, Commonwealth Act and Presidential Decrees.

Administrative Rules and regulations

These are orders, rules and regulations issued by the heads of Departments, Bureau and other agencies of the government for the effective enforcement of laws within their jurisdiction. However, in order that such rules and regulations may be valid, they must be within the authorized limits and jurisdiction of the office issuing them and in accordance with the provisions of the law authorizing their issuance.

Administrative Rules and regulations

In handling these types of materials, there are two important items needed: a.) Issuing Agency and b.) Year it was promulgated. This is due to the fact that all Departments, Bureaus, and other government agencies use the administrative orders, memorandum orders and memorandum circulars for their administrative rules and regulations and they start always with number 1 every year. Even the Supreme Court issues Administrative Orders, Circulars, Memorandum Orders, and Administrative Matters.

Administrative Rules and regulations

Before the Administrative Code of 1987, these orders, rules and regulations were selectively published in the Official Gazette. Thus, the only source to be able to get a copy of the text of these rules and regulations is the issuing government agency itself.

Administrative Rules and regulations

When the 1987 Administrative Code (Executive Order No. 292) was promulgated, all governmental and department orders, rules and regulations have to be filed with the University of government agencies including government owned and controlled corporations have to file three (3) certified copies of their orders, rules and regulations with the University of the Philippines Law Center's Office of National Administrative Register and are required to publish quarterly in a publication called National Administrative Register.

Administrative Rules and regulations

Aside from the printed copies, the National Administrative Register is available electronically on CD-ROM (CD Asia Technologies Inc.) and online at the Supreme Court E-Library. Rules in force on the date on which the Code took effect which are not filed within three months from the date not thereafter shall be the basis of any sanction against any person or party.

Administrative Rules and regulations

Each rule becomes effective 15 days after the filing, unless a different date is fixed by law or specified in the rule, such as in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The court shall take judicial notice of the certified copy of each rule duly filed or as published in the bulletin or codified rules

Administrative Rules and regulations

University of the Philippines Law Center's Office of National Administrative Register is not only tasked to publish this quarterly register but must keep an up-to-date codification of all rules thus published and remaining in effect together with a complete index and appropriate tables. Every rule establishing an offense or defining an act which pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text. Exceptions to the "filing requirement" are Congress, Judiciary, Constitutional Commission, military establishments in all matters relative to Armed Forces personnel, the Board of Pardons and Parole and state universities and colleges.

Administrative Rules and regulations

University of the Philippines Law Center's Office of National Administrative Register is not only tasked to publish this quarterly register but must keep an up-to-date codification of all rules thus published and remaining in effect together with a complete index and appropriate tables. Every rule establishing an offense or defining an act which pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text. Exceptions to the "filing requirement" are Congress, Judiciary, Constitutional Commission, military establishments in all matters relative to Armed Forces personnel, the Board of Pardons and Parole and state universities and colleges.

Administrative Rules and regulations

As previously stated, there are no up-to-date or complete Statutes finders. Those published are listed in the Bibliography. As previously stated, to facilitate legal research, one has to go online to virtual libraries such as the Supreme Court E-Library, Chan Robles Virtual Law Library, Arellano Law Foundation's The I Lawphil Project, and CD Asia Technologies or the different databases in CD ROM such as those of CD Asia Technologies Asia Inc., !elibrary! A Century and 4 Years of Supreme Court Decisions and i-Law Instant CD.

Ordinances
By Autonomous Region The legislative assemblies enact ordinances to govern the region and may create administrative agencies to operate in the regions. By Local Government Units pursuant to the Local Government Code of 1991, for e.g., Section 16 (General Welfare Clause) and Section 511 (Posting and Publication of Ordinances with Penal Sanctions).