THE GREAT FORMULA IN PASSING THE BAR EXAMINATIONS

Contributed by Atty. Glenn M. Mortel

“There is nothing that can help a bar examinee most than a constant and intensive study of the provisions of the various codes and the interpretation and application thereof by the Supreme Court in its decisions. By study is meant, that the provisions must be correctly understood and the thought or words thereof put to memory. After a chapter, for example, has been studied, the next one should be studied next, and after this, a review of all that has already been studied re-reviewed, to keep the subject matter and the provisions fresh in mind.” – Alejo Labrador

1. Actual preparation for the bar examination starts from the first day a law student attended class during the first year in the law school.

2. The blooming secret in passing the bar examination is this: Present good answers that will make the examiners take notice. Good answers anchored upon logical reasoning, written in readable English and more importantly, justified by appropriate legal authority.

3. If the candidates are at a loss as to what specific legal provisions or case doctrines to use in answering problems, the only alternative left for them is to use their own common sense.

4. The key to passing the bar examinations is contained in one word: ARTICULATION. Articulation is expressive of the following basic fundamentals: good language, impressive presentation, logical reasoning and substantial background knowledge of law and procedure.

5. The examinee who has a fairly good command of English, assuming that he is prepared in all other matters, stands definitely with a much better chance of passing.

6. The responsive character of a given answer would depend to a great extent, on command of good language, logical reasoning and impressive presentation. This objective of preparing impressive and responsive answers can only be achieved by constant practice.

7. Get this straight right now. Passing the bar examination has been, still is, and will always be a difficult proposition!

8. No one can really help you pass the bar examination but yourself.

9. The greatest blooming secret of passing the bar examination is and will always be: PREPARATION! Not just any kind of preparation, but proper, sound and systematic preparation.

10. Systematic review can only be done by the use of what we call schedules which the candidate must follow vigorously to the letter if he expects to attain the best results.

11. There will be times when you become sleepy while reviewing but never for one moment, tell yourself: Man, this review can wait! Do not be stupid. Always remind yourself that time is of the essence and is decidedly running too short for you.

12. Force yourself to read, understand and absorb what law you reviewed. Otherwise, all your efforts will go to waste.

13. Love and review cannot mix in the business of preparing for the bar examination.

14. Early to bed, early to rise, that is the way to make a man healthy, wealthy and wise.

15. A morning shower is a must.

16. Never stay up late to the wee hours of morning, cramming law into your head. This would not do you any good. Remember, you have to conserve as much energy as you possibly can.

17. Remember, keeping your health in good running condition is just as important as reviewing and passing the bar examination.

18. Good handwriting is decidedly a great factor in passing the bar examination.

19. To beat time, never write kilometric answers.

20. By far the most important tool that the bar candidate could equip himself with which to tackle the examination that is inherently personal to him is command of written English.

21. You have to write simple, grammatically correct English if you want to hurdle the examination.

22. Presentation of answers that are not only good but logical, full of substance and supported by law and other authorities, are gems to the examiner, whether he has a good or black heart.

23. Make your motto now: Stick to codal provisions! Compliment this with doctrines laid down in recent decisions of the Supreme Court.

24. Impressive answers showing the candidates reasoning faculty is what the examiners want to read in your examination notebooks.

25. Ability to retain your understanding of the substance of the law through efforts of study is more desirable quality to possess than mere ability to memorize legal provisions.

26. Memorizing a particular provision of law word for word but without understanding it and its various implications is a lot of wasted effort.

27. Never fail to read the newspapers when you are preparing for the bar examination. Read newspapers from 20 to 30 minutes every day.

28. You can never expect to pass the bar examination without preparation.

29. Predicting probable questions based on important principles or provisions of law is the safer method of speculating what the examiners are likely to ask in their examinations.

30. Never depend on tips for your passing. But never brush these tips aside as nothing but trash. They may likely cause your downfall. Never, however, bank too much on them.

31. Fountain or sign pens are really the most important equipment in bar examination. Never start for the examination without bringing along with you two or more fountain or sign pens.

32. Like the weather, examiners are absolutely a bunch of unpredictable fellows, capable of asking unpredictable questions.

33. Do not try to memorize 50 definitions or distinctions in any given time. Two or three will do.

34. The real secret in remembering the matters contained in an enumeration is the use of keywords.

35. Make your keywords on enumerations you consider important.

36. Never leave a blank in an enumeration! However, if you use the letters a, b, c, etc. for numbers in the enumeration, so much the better. Ten to one, the examiner may not count his fingers. Make the first four in the enumeration definitely good.

37. The bar candidate should do well to be always on guard against catchy questions capable of being answered in a number of ways, e.g. What is a complaint? The perfect answer should include both definitions in criminal and civil procedure.

38. Never be content to answer questions with a mere yes or no. You must, at all times, give justification why your answer is a yes or no. Unless, of course, the examiner qualifies his question with instruction enclosed in parenthesis like: (Answer with a yes or no only).

39. Always determine the real facts (examiners have the bad habit of including irrelevant facts to confuse you) and the issue or issues in controversy. Which side you take, always justify your side with reasons based on law, rule, equity and justice. Whatever your answer may be, provided it is written in legible language, the examiner will never deny you the corresponding credit you deserve.

40. Always remember, make efforts to frame your answers so that they are responsive to the questions. Never beat around the bush. Go right straight ahead with your answer. Avoid citations if and when you are not absolutely sure about them. The shorter the answers are, the more direct, the better. Avoid display of flowery expressions which are complicated by legal verbosity. All you need are sensible, direct and reasonable answers that are responsive to the questions.

41. Legal knowledge is not enough to solve a particular legal issue. What is important is ability to apply this knowledge to the solution of legal controversies.

42. The most convenient method of tackling problem questions is to present immediately the conclusion of a given answer. Practice, practice, constant practice will help the bar candidate write good answers that examiners will give favorable credit.

43. The technique of writing down answers responsive to questions is a matter that the candidate must learn as a matter of imperative necessity.

44. Brevity and directness when done properly could make an answer both effective and impressive. However, when overdone to a point where the ideas sought to be conveyed becomes vague and difficult to understand, they become a liability.

45. Never forget that every candidate is a potential bar topnotcher.

46. So, if you are a candidate just preparing for the bar examination, whose chances of passing are quite problematical, just limit your ambition for the present to just working hard to obtain a 75 percent in the great battle of your life.

47. Take comfort in this: That even those who become lawyers by “just luck”, are making good in the practice of law. Nothing can really put a determined man down.

48. In your preparation for the greatest battle of your life, call upon Him who is the source of all knowledge, wisdom and understanding. In deep humility, bended knees and tears, He will make all things beautiful in His time. Victory belongs to the most persevering!

Note:
All excerpts, except the last (No. 48), were taken by Atty. GLENN M. MORTEL from the book “SECRETS ON HOW TO PASS THE BAR EXAMINATION” by Dean Wenceslao G. Laureta, 1990 edition.

The Right to Nationality of Foundlings in International Law

By Dean Ralph A. Sarmiento[1]

Contents

Introduction

Nationality

Statelessness

The Right to Nationality in International Law

The Right to Nationality in Resolutions of the United Nations General Assembly

The Right to Nationality in International Conventions

The Scope and Meaning of the Right to Nationality

International Conventions that Specifically Apply to Foundlings

The Right to Nationality in Customary International Law

The Right to Nationality as a Customary Rule of International Law Derived from Treaties

Conclusion

Introduction

This article seeks to answer the question of whether International Law sufficiently protects the right of foundlings to a nationality. In particular, it focuses on the issue of whether International Law affords foundlings the right to be considered nationals of the State in which they are found, and whether States have a binding obligation to confer their nationality on foundlings found in their territory.

As used in this article, a foundling is a child of unknown parentage found abandoned on the territory of a State.[2] It must be an infant at the time it was found abandoned. The Black’s Law Dictionary defines a foundling as “a deserted or abandoned infant; a child without a parent or guardian, its relatives being unknown.[3] The Oxford English Dictionary also uses the term infant in defining foundling, thus “an infant that has been abandoned by its parents and is discovered and cared for by others.”[4] The word infant, on the other hand, is defined as “a very young child or baby.”[5]

This article will argue that there are gaps in International Law that result in inadequate protection and implementation of the right of foundlings to a nationality. In particular, this article will show that the obligation of a State to confer its nationality upon a foundling in its territory exists only as a matter of treaty obligation in International Law.

This article is structured as follows: The first section will talk about nationality and discuss the different principles of acquiring a nationality and the corresponding obligations of States. The second section will talk about statelessness and the measures taken States to reduce it. The third section will examine the rules that confer nationality on foundlings in international conventions and treaties, and determine the scope of their coverage and their binding nature. The fourth section will determine if the existing practices or rules that confer nationality on foundlings have attained the status of customary international law and, therefore, binding upon all States.

For purposes of this article, the terms nationality and citizenship shall be used interchangeably and without distinction. Most States consider citizenship, which is the term that is commonly used in municipal or national law, as synonymous with nationality, which is the term used in International Law. The United States (U.S.) and Russia are two of the notable exceptions. Under U.S. law, not all U.S. nationals are U.S. citizens. For example, the inhabitants of American Samoa and Swain Island are considered nationals for International Law purposes but are not considered citizens for purposes of the U.S. Constitution and its laws.[6] Under Russian law, the term nationality is associated with the ethnicity of a person, while the term citizenship refers to the legal bond between an individual and the State.[7]

Nationality

Nationality is generally understood as the legal bond that connects a person to a particular State. It constitutes his membership in the particular State. It makes him a national (or a citizen in the point of view of municipal law) of that State.

Nationality creates reciprocal obligations between the citizen and the State. It imposes upon the citizen the duty to render allegiance to the State and subjects him to the obligations created by the laws of that State. Thus, it is the basis of the State’s exercise of jurisdiction over the person. On the part of the State, nationality imposes the responsibility to protect the citizen. It also gives the State the right to accord diplomatic protection to its nationals and to make claims on their behalf.

Article 15(1) of the Universal Declaration of Human Rights[8] provides that everyone has a right to nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

International Law, however, recognizes the right of each State to determine who its citizens are, and to establish its own standards for conferring nationality albeit only for domestic law purposes. In the Nottebohm case,[9] the International Court of Justice (ICJ) ruled that Liechtenstein is the sole judge of whether Nottebohm is a citizen of the State but such is for domestic law purposes only as other nations are not obliged to recognize  Nottebohm’s Liechtenstein citizenship especially absent a genuine link between Nottebohm and that State.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws[10] (hereafter, the “1930 Hague Convention“) provides the following rules in determining a person’s nationality:

“It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.” (Article 1)

“Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.” (Article 2)

A State may confer its nationality exclusively upon persons born within its territory or jurisdiction by the application of the principle of jus soli (by place of birth)[11] regardless of the nationality of their parents. A State may also confer nationality only to persons whose parents are nationals of the State by the application of the principle of jus sanguinis (by right of blood) regardless of whether they are born within or outside its territory. A State may also apply both principles of jus soli and jus sanguinis. A State may also confer nationality upon persons through naturalization, which does not require the naturalized citizen to be born within the territory of the State or to be born of parents who are nationals of the State. A State may also consider marriage and adoption as methods of acquiring a nationality.

The concurrent application of the principles of jus soli and jus sanguinis may result in an individual having the nationalities of two States, i.e., dual citizenship. If a child whose parents’ State of nationality applies the principle of jus sanguinis is born in the territory of another State that applies the principle of jus soli, the child would be possessed of dual citizenship. The child acquires both the nationality of his parents’ State of nationality and the nationality of the State where he was born.

Article 3 of the 1930 Hague Convention recognizes that a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses. However, Article 5 of the said Convention also adds that:

“Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.”

Statelessness

While the concurrent application of the principles of jus soli and jus sanguinis may result in a person having dual or multiple nationalities, their conflicting application, on the other hand, may result in an anomaly whereby an individual is not possessed of any nationality.

If a child whose parents’ State of nationality exclusively applies the principle of jus soli is born in the territory of another State that exclusively applies the principle of jus sanguinis, the child would not be considered a citizen of either State; hence, a stateless person.

Article 1 of the 1954 Convention Relating to the Status of Stateless Persons[12] defines a stateless person as a person who is not considered as a national by any State under the operation of its laws. Since many rights and privileges afforded by States may be exercised only by their nationals, a stateless person, therefore, is at a big disadvantage.

While nationality is the basis of the reciprocal obligation of allegiance on the part of the citizen and obligation of protection on the part of the State, a stateless person is not without obligations to the State in which he finds himself. Article 2 of the 1954 Convention Relating to the Status of Stateless Persons[13] provides that:

“Every stateless person has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”

Reciprocally, although not a national of the State in which he finds himself, a stateless person is not entirely without right and protection. Under the same Convention,[14] a stateless person shall be accorded the same treatment at least as favorable as that accorded to the nationals of the State with respect to freedom to practice their religion and freedom as regards the religious education of their children.[15] A stateless person shall also be accorded the same treatment granted to a national of the country of his habitual residence with respect to rights to artistic rights and industrial property, free access to courts, rationing, elementary education, and public relief and assistance.[16] A stateless person shall also be accorded the same treatment which shall be as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances with respect to rights to movable and immovable property, right of association, wage-earning employment, liberal professions, housing, and freedom of movement.[17]

Aiming to reduce statelessness by international agreement, the 1961 Convention on the Reduction of Statelessness[18] has adopted the following measures to prevent statelessness:

“A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.” (Article 1)

“A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State.” (Article 4)

The Right to Nationality in International Law

Since nationality is the legal bond between a State and an individual, such bond is not possible without the consent of the State. Such consent may be manifested by a State in several ways:

  1. Expressly, through a municipal law that confers nationality upon a foundling;
  2. Expressly, through an international convention or treaty where a State assumes the obligation to confer its nationality upon foundlings in its territory; or
  3. Impliedly, through a rule of customary international law that imposes an obligation on the State to confer its nationality upon foundlings in its territory.

This article focuses only on conferment of nationality on foundlings either by way of an obligation assumed under an international convention or imposed by an international custom or norm. However, the examination of municipal laws that confer nationality upon foundlings is still relevant as evidence of a general practice accepted as law, i.e., an international custom.[19]

Hence, under International Law, the right of a foundling to nationality can be based on international conventions or on international customs, both of which are considered to be sources of International Law pursuant to Article 38, paragraph 1 of the Statute of the International Court of Justice (“ICJ Statute”).[20]

The Right to Nationality in Resolutions of the United Nations General Assembly

The Universal Declaration of Human Rights,[21] which was adopted by the General Assembly of the United Nations on 10 December 1948, has codified “nationality” as a human right.[22] Article 15 of the Declaration reads:

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

As to the binding nature of resolutions of the U.N. General Assembly, Professor Ian Brownlie expresses the view that these resolutions, in general, are not binding on member States. He adds, however, that when the resolutions are concerned with general norms of international law, then acceptance by a majority vote constitutes evidence of the opinions of governments in the widest forum for the expression of such opinions.[23]

As a mere resolution of the General Assembly, the Universal Declaration of Human Rights is not per se legally binding. There is, however, a view that since 1948 the Declaration has become binding as a new rule of Customary International Law.[24] Paragraph 2 of the Proclamation of Teheran,[25] which was adopted by the International Conference on Human Rights held in Iran in 1968 declares: “The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.”

In 1959, the Declaration on the Rights of the Child[26] was proclaimed by the U.N. General Assembly through its Resolution 1386(XIV) of 20 November 1959. It contains a more emphatic provision on the right to nationality as applied to children as it makes it an entitlement of a child from birth. Principle 3 of the Declaration reads:

“The child shall be entitled from his birth to a name and a nationality.”

Another resolution of the U.N. General Assembly, the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children,[27] adopted on 3 December 1986, and published on 6 February 1987, also affirms the right to nationality as applied to children. Article 8 of the said Declaration reads:

“The child shall at all times have a name, a nationality and a legal representative. The child should not, as a result of foster placement, adoption or any alternative regime, be deprived of his or her name, nationality or legal representative unless the child thereby acquires a new name, nationality or legal representative.”

The Right to Nationality in International Conventions

International conventions or treaties are agreements that establish rules that are expressly recognized by the parties to them.[28] The Vienna Convention on the Law of Treaties[29] defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.[30]

Since express consent is required for a State to be bound by the rules that international conventions or treaties establish, States that do not become a party to a particular convention or treaty cannot be bound by its terms. This principle was explained by the ICJ in the North Sea Continental Shelf cases[31] where it stated that:

“In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,—if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.”[32]

The principle is also echoed in the Vienna Convention on the Law of Treaties. It states: “A treaty does not create either obligations or rights for a third State without its consent.[33] It adds further: “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”[34]

Therefore, a rule conferring nationality upon foundlings, if established pursuant to an international convention or treaty, is only binding on States that are parties to the said convention or treaty. Consequently, foundlings found in States that are not parties to such an international convention may not compel said States to give them their nationalities.

Thus, the following international conventions that affirm the right of everyone to a nationality must be understood as binding only on State which are parties to them, either by ratification, accession, or any other means allowed by the particular convention in question.

The Council of Europe affirms the right of everyone to a nationality through the European Convention on Nationality,[35] which it adopted on 6 November 1997 at Strasbourg. It provides:

Article 4 – Principles

The rules on nationality of each State Party shall be based on the following principles:

  1. everyone has the right to a nationality;
  2. statelessness shall be avoided;
  3. no one shall be arbitrarily deprived of his or her nationality;

The Arab States also recognize the right to a nationality. Article 29 of the Arab Charter on Human Rights,[36] which was adopted by the Council of the League of Arab States on 22 May 2004, states:

  1. Everyone has the right to nationality. No one shall be arbitrarily or unlawfully deprived of his nationality.
  2. States parties shall take such measures as they deem appropriate, in accordance with their domestic laws on nationality, to allow a child to acquire the mother’s nationality, having due regard, in all cases, to the best interests of the child.
  3. No one shall be denied the right to acquire another nationality, having due regard for the domestic legal procedures in his country.

The Association of Southeast Asian Nations (ASEAN) also echoes a similar declaration which affirms the right to nationality. Article 18 of the ASEAN Human Rights Declaration,[37] which was adopted on 18 November 2012 at Phnom Penh, Cambodia, states:

“Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.”

The Latin American States also uphold the right to nationality of every person. The American Convention on Human Rights, “Pact of San Jose, Costa Rica,”[38] which was adopted by the Organization of American States (OAS) on 22 November 1969, states:

Article 20. Right to Nationality

  1. Every person has the right to a nationality.
  2. Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality.
  3. No one shall be arbitrarily deprived of his nationality or of the right to change it.

The 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms,[39] which was adopted on 26 May 1995 at Minsk, Belarus, also provides that:

Article 24

  1. Everyone shall have the right to citizenship.
  2. No one shall be arbitrarily deprived of his citizenship or of the right to change it.

In other international conventions, this right to a nationality is guaranteed in a clearer language, i.e., as the right to acquire a nationality, especially in the case of children.

Article 24(3) of the International Covenant on Civil and Political Rights,[40] which was adopted on 16 December 1966 in New York, affirms that: “Every child has the right to acquire a nationality.”

Article 7(1) of the Convention on the Rights of the Child,[41] which was adopted on 20 November 1989 in New York, reads:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.”

Article 7(2) of the same Convention[42] imposes the further obligation upon States Parties to “ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

The African States also assert the right of every child to acquire a nationality. The African Charter on the Rights and Welfare of the Child,[43] which was adopted by the Organization of African Unity on 11 July 1990 at Addis Ababa, Ethiopia, states:

Article 6: Name and Nationality

  1. Every child shall have the right from his birth to a name.
  2. Every child shall be registered immediately after birth.
  3. Every child has the right to acquire a nationality.
  4. States Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.

The Scope and Meaning of the Right to Nationality

While there is no question about the binding nature of the provisions of international conventions protecting the right of everyone to a nationality and to acquire a nationality, the question, however, is the scope of the said provisions and the nature of the obligation they impose upon the states which are parties to them. Are the said general rights to a nationality and to acquire a nationality sufficient to impose a binding obligation upon a state party to confer its nationality upon a foundling in its territory?

In General Comments No. 17: Article 24 (Rights of the Child),[44] the Human Rights Committee has made the following observations:

“Special attention should also be paid, in the context of the protection to be granted to children, to the right of every child to acquire a nationality, as provided for in article 24, paragraph 3. While the purpose of this provision is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory.”

In his Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights,[45] Marc Bossuyt made the following observations with respect to the adoption of the wording of Article 24, paragraph 3 of the ICCPR.

“During the ensuing debate, the word ‘acquire’ was inserted in draft Article 24(3), and the words ‘from his birth’ were deleted. Accordingly, the word ‘acquire’ would infer that naturalization was not to be considered as a right of the individual but was accorded by the State at its discretion.[46]

Hence, the general right of everyone to nationality and of every child to acquire a nationality does not impose an unqualified obligation on the part of a State party to give its nationality on every child born on its territory.

The same interpretation would apply to all the other international conventions that protect the right of everyone to nationality and the more specific right of a child to acquire a nationality, including the Convention on the Rights of the Child which was adopted after the ICCPR. In fact, Article 7(2) of the Convention on the Rights of the Child provides: “States parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

Article 7(2) of the Convention on the Rights of the Child underscores the equal importance of a State’s “national law” and its “obligations under the relevant international instruments” in ensuring its implementation of the right of a child to acquire a nationality, in particular where the child would otherwise be stateless. This obligation is explained by the Human Rights Committee in paragraph 8 of General Comments No. 17,[47] which reads:

“States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents. The measures adopted to ensure that children have a nationality should always be referred to in reports by States parties.

International Conventions that Specifically Apply to Foundlings

While the international conventions cited above deal with the right to nationality as applied to anyone or any person, or to children in general, there are several international conventions that contain specific provisions that apply to foundlings and their right to a nationality.

            The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws[48] provides:

“Article 14.  A child whose parents are both unknown shall have the nationality of the country of birth. If the child’s parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found.

Article 15. Where the nationality of a State is not acquired automatically by reason of birth on its territory, a child born on the territory of that State of parents having no nationality, or of unknown nationality, may obtain the nationality of the said State. The law of that State shall determine the conditions governing the acquisition of its nationality in such cases.”

            The 1961 Convention on the Reduction of Statelessness,[49] on the other hand, contains the following provisions:

Article 1

  1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance with subparagraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law.

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.

Article 12

  1. In relation to a Contracting State which does not, in accordance with the provisions of paragraph 1 of article 1 or of article 4 of this Convention, grant its nationality at birth by operation of law, the provisions of paragraph 1 of article 1 or of article 4, as the case may be, shall apply to persons born before as well as to persons born after the entry into force of this Convention.
  2. The provisions of paragraph 4 of article 1 of this Convention shall apply to persons born before as well as to persons born after its entry into force.
  3. The provisions of article 2 of this Convention shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.

The European Convention on Nationality[50] also provides:

Article 6 – Acquisition of Nationality

1 Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons:

  1. children one of whose parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad. With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law;
  2. foundlings found in its territory who would otherwise be stateless.

The Covenant on the Rights of the Child in Islam,[51] which was adopted by the 32nd Islamic Conference of Foreign Ministers in Sana’a, Republic of Yemen in June 2005, states:

Article Seven – Identity

  1. A child shall, from birth, have right to a good name, to be registered with authorities concerned, to have his nationality determined and to know his/her parents, all his/her relatives and foster mother.
  2. States Parties to the Covenant shall safeguard the elements of the child’s identity, including his/her name, nationality, and family relations in accordance with their domestic laws and shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory.
  3. The child of unknown descent or who is legally assimilated to this status shall have the right to guardianship and care but without adoption. He shall have a right to a name, title and nationality.

The Right to Nationality in Customary International Law

The Charter of the United Nations[52] acknowledges the existence of customary international law through Article 38(1)(b) of the ICJ Statute, which is incorporated into the Charter by Article 92 thereof. It states:

“The Court, whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply… international custom, as evidence of a general practice accepted as law.”[53]

Being a general practice accepted as law, a rule of customary international Law requires the presence of a State practice (usus) and the belief that such practice is obligatory as a matter of law or juridical necessity (opinio juris sive necesitatis). Opinio juris was described by Professor Brownlie as a “sense of legal obligation, as opposed to motives of courtesy, fairness, or morality.

We will now turn to examine if there is evidence of practice that States adhere to, out of a sense of legal obligation (opinio juris), that is sufficient to maintain that the obligation of a State to give its nationality upon a foundling born or found on its territory has crystallized into a rule of customary international law.

State practice in the form of having municipal laws granting nationality on foundlings in their territories has been found in the following States:

  1. United States of America – Section 301(f) of its Immigration and Nationality Act,[54] also known as the Foundling Statute, provides:

SEC. 301. The following shall be nationals and citizens of the United States at birth:

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

  1. Canada – The Citizenship Act[55] provides:

Section 3, Par. 4. (1) For the purposes of paragraph 3(1) (a), every person who, before apparently attaining the age of seven years, was found as a deserted child in Canada shall be deemed to have been born in Canada, unless the contrary is proved within seven years from the date the person was found.

  1. Austria – The Nationality Act of 1985[56] provides that:

Article 8. (1) Until proof to the contrary, a person under the age of six months found on the territory of the Republic is regarded as national by descent.

  1. Bulgaria – The Law for the Bulgarian Citizenship[57] provides:

Art. 11. Considered born on the territory of the Republic of Bulgaria is a child found on this territory, whose parents are unknown.

  1. Croatia – The Law on Croatian Citizenship[58] provides:

Article 7. A child who was born or found on the territory of the Republic of Croatia shall acquire Croatian citizenship if both of his or her parents are unknown or are persons whose citizenship is unknown or are stateless persons. The child shall lose Croatian citizenship if by time he or she is fourteen it shall be determined that both of his or her parents are foreign citizens.

  1. Denmark – The Danish Nationality Act[59] provides:

Article 1(2) A child found abandoned in Denmark will, in the absence of evidence to the contrary, be considered a Danish national.

  1. Finland – Section 12 of its Nationality Act of 2003[60] provides:

Section 12. Foundlings and children of parents with unknown citizenship

A foundling who is found in Finland is considered to be a Finnish citizen as long as he or she has not been established as a citizen of a foreign State. If the child has been established as a citizen of a foreign State only after he or she has reached the age of five, the child retains Finnish citizenship, however.

  1. Greece – The Greek Nationality Code[61] states:

Article 1(2). A person born on Greek territory shall acquire the Greek nationality by birth, provided that such person does not acquire any foreign nationality by birth or is of unknown nationality.

  1. Hungary – The ACT LV of 1993 on Hungarian Citizenship[62] states:

Section 3(3) Until proven to the contrary, the following persons shall be recognized as Hungarian citizens:

  1. b) children born of unknown parents and found in Hungary.
  2. Italy – The Law No. 91 of 1992[63] provides:

Article 1(2). The child of unknown parents who is found abandoned in the territory of the Republic shall, unless possession of another citizenship is proved, be deemed citizen by birth.

  1. Spain – The Spanish Civil Code[64] provides that:

Article 17. The following persons are Spaniards by birth:

  1. d) Those born in Spain of uncertain filiation. For these purposes, minors whose first known place of existence is in Spanish territory shall be presumed born within Spanish territory.
  2. Sweden – The Act on Swedish Citizenship[65] provides:

Section 2 Any foundling discovered in Sweden shall be considered to be a Swedish citizen until any indication to the contrary is discovered.

  1. United Kingdom – The British Nationality Act of 1981[66] states:

(2) A new-born infant who, after commencement, is found abandoned in the United Kingdom shall, unless the contrary is shown, be deemed for the purposes of subsection (1)-

(a) to have been born in the United Kingdom after commencement; and

(b) to have been born to a parent who at the time of the birth was a British citizen or settled in the United Kingdom.

  1. India – Section 3(1) of its Citizenship Act of 1955[67] states:
  2. Citizenship by birth

(1) Except as provided in sub-section (2), every person born in India, –

(a) on or after the 26th day of January, 1950.

Mere birth in India, even if both the parents are unknown, is sufficient.[68]

  1. Sri Lanka – Its Citizenship Act of 1948[69] provides:
  2. Foundlings

Every person first found in Ceylon as a newly born deserted infant of unknown and unascertainable parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Ceylon by descent.

  1. South Korea – Article 2, paragraph 2 of its Nationality Law[70] reads:

Article 2. Attainment of Nationality by Birth

(1) A person falling under any of the following subparagraphs shall be a national of the Republic of Korea at birth:

  1. A person who was born in the Republic of Korea, if both of the person’s parents are unknown or have no identity.

(2) An abandoned child found in the Republic of Korea shall be recognized as born in the Republic of Korea.

  1. Egypt – Its Law No. 26 of 1975 Concerning Egyptian Nationality[71] provides:

Article 2: Shall be considered Egyptians:

  1. Those who were born in Egypt of unknown parents. A foundling in Egypt shall be considered as born in it, unless otherwise proved.
  2. Iraq – Its Law No. (46) of 1963[72] provides:

Article 4: Shall hereby deemed to be an Iraqi National:

  1. Every person in Iraq of unknown parents. The foundling who is found in Iraq, shall be deemed to be born there unless there shall be an evidence against it.
  2. Kuwait – Its Nationality Law of 1959[73] provides:

Article 3. Kuwaiti nationality is acquired by any person born in Kuwait whose parents are unknown. A foundling is deemed to have been born in Kuwait unless the contrary is proved.

  1. Mozambique – Its Nationality Act of 1975[74] states:

Article 1

  1. The following shall be Mozambican nationals, provided they are born in Mozambique:

(b) Persons born of stateless parents or parents of unknown nationality or of unknown parents;

  1. Algeria – The Nationality Law of 1970[75] states that:

Article 7. The following are of Algerian nationality by birth in Algeria:

(1)  the child born in Algeria of unknown parents;

However, the child born in Algeria of unknown parents shall not be considered to have ever been Algerian if, before he comes of age, it is established that he is also of foreign descent and if he possesses the nationality of his foreign parent in accordance with the law of that country.

Any foundling found in Algeria is considered to be born in Algeria until the contrary has been proved.

  1. Belize – The Nationality Act of 1981[76] provides:
  2. Foundlings.

Every person first found in Belize as a newly born deserted infant of unknown and unascertainable parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Belize by descent.

  1. The following post-Communist States in Europe also grant exceptional jus soli citizenship for children of unknown parents, found in the territory, particularly: Albania, Bosnia H., Czech Republic, Estonia, FRY/Serbia, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania, Slovakia, and Slovenia.[77]

The above shows that there is a big corpus of domestic statutes granting citizenship on foundlings. However, whether it satisfies the state practice requirement of customary international law is an entirely different question.

The State practice, to establish a rule of customary international law, must be extensive, virtually uniform, and show a general recognition that a rule of law or legal obligation is involved. As stated by the International Court of Justice in the North Sea Continental Shelf cases:

“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”[78]

However, perfect uniformity in the application of the practice is not really necessary. In the Case Concerning Military and Paramilitary Activities in and against Nicaragua[79] when it examined the customary nature of the principles of non-use of force and non-intervention, the ICJ stated that:

“It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”[80]

The ICJ also emphasized the necessity of opinio juris in several decisions. In the North Sea Continental Shelf cases, it observed:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.”[81]

While the State practice of conferring nationality on foundlings is sufficiently dense and extensive, it does not appear to be virtually uniform.

A number of States give their citizenship on foundlings found in their territory without requiring that the foundling must have been born in their territory. Some States, on the other hand, require that a foundling be born in their territory in strict application of the principle of jus soli. But some States implement a presumption that foundlings are deemed to have been born in their territory unless the contrary is proved.

Other States implementing such presumption impose a period within which such presumption can be rebutted, and that after such period and there is no evidence against it, then the presumption becomes conclusive. An example of this is Finland, where a foundling retains Finnish citizenship if established as a citizen of another State only after he or she has reached the age of five.[82] Another example is Canada that considers a deserted child to have been born in Canada, unless the contrary is proved within seven years from the date the person was found.[83]

Some States also implement an age requirement on foundlings as a condition for giving its citizenship. For example, the United States requires that foundlings were under the age of five years at the time they were found.[84] Canada requires that the foundling be found before apparently reaching the age of seven years.[85] Austria requires that a foundling be found under the age of six months.[86] The United Kingdom, on the other hand, requires that the foundling was a new-born infant at the time it was found.[87] This reflects the understanding of some States that a foundling must be an infant or a very young child.

Therefore, the practice of States of giving nationality to foundlings found in their territory is not sufficiently uniform and consistent enough to constitute a rule of customary international law. There is also no clear evidence of opinio juris that States feel a sense of legal obligation to confer their nationality on foundlings found in their territory.

The Right to Nationality as a Customary Rule of International Law Derived from Treaties

Some treaties known as law-making treaties (“traité-loi“) may also establish norms which, when coupled with opinio juris, result to rules of customary international law that become binding not only on the parties to the treaty, but also on non-parties. Article 38 of the Vienna Convention provides: “Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.

In the ILA Report (London Principles),[88] the International Law Association summarized the case law on the role of treaties in the formation of customary international law:

  1. A treaty may provide evidence of existing (lex lata) customary law;[89]
  2. Multilateral treaties can provide the impulse or model for the formation of new customary rules through State practice.[90]
  3. Multilateral treaties can assist in the “crystallization” of emerging rules of customary international law.[91]
  4. A multilateral treaty may give rise to new customary rules (or to assist in their creation) “of its own impact” if it is widely adopted by States and it is the clear intention of the parties to create new customary law.[92]

Treaties can, therefore, play an important role in the crystallization of emerging norms as binding international customs or at least to affirm their existence. In the North Sea Continental Shelf cases, the ICJ also recognized the norm-creating nature of treaties, as one of the recognized methods of establishing international customs, holding that:

“There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed.”[93]

The ICJ, however, also declared that in order to become an international custom, the provision of a treaty in question must be:

“a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention.”[94]

The relevant treaty provisions that specifically give foundlings the right to the nationality of the State where they are found state provide the following:

  1. A child whose parents are both unknown shall have the nationality of the country of birth. (Art. 14, 1930 Hague Convention)[95];
  2. A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. (Art. 14, 1930 Hague Convention)[96];
  3. A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State. (Art. 2, 1961 Convention on the Reduction of Statelessness)[97];
  4. Each State Party shall provide in its internal law for its nationality to be acquired ex lege by foundlings found in its territory who would otherwise be stateless. ( 6, European Convention on Nationality)[98]

For the said treaty provisions to be binding on States, which are not parties to said conventions as norms of customary international law, said provisions must fulfill the said standards set by the ICJ.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws entered into force on 1 July 1937 by virtue of the ratification or accessions of ten States.[99] As of this writing, only twenty-two States are parties to the Convention, namely Australia, Belgium, Brazil, Burma (Myanmar), China, Cyprus, Fiji, Great Britain, India, Kiribati, Lesotho, Liberia, Malta, Mauritius, Monaco, Netherlands, Norway, Pakistan, Poland, Swaziland, Sweden, and Zimbabwe.[100] Canada previously ratified the Convention in 1934 but subsequently denounced it 15 May 1996.[101]

The 1961 Convention on the Reduction of Statelessness entered into force on 13 December 1975 and has sixty-four States parties as of this writing.[102] However, while it has more parties, its provision on foundlings (Article 2) cannot be said to reflect existing rules of customary law. Article 12(3) of the  Convention states that the provisions of Article 2 shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State. That being the case, the provision on foundlings contained in Article 2 of the Convention neither provides evidence of existing customary law nor assists in the crystallization of rules of customary international law. The said provision creates a purely conventional or treaty obligation that is referable only to the Convention.

Moreover, not having been widely adopted by States, the said provision cannot give rise to a new rule (lex ferenda) of customary international law or assist in its creation “of its own impact.”

The same things can be said of the provision on the nationality of foundlings in Article 6 of the European Convention on Nationality, which entered into force on 1 March 2000. While the Convention is also open to non-members of the Council of Europe, the Convention, as of this writing, has been signed by twenty-nine States, but has been ratified by only twenty of those States.[103] From the very wordings of Article 6, the obligation of a State Party to give its nationality to foundlings found in its territory who would otherwise be stateless shall be provided in its internal law. Evidently, it is an obligation that a State assumes within the context of the Convention, and not arising from a belief that it is rendered obligatory by the existence of a rule of customary international law requiring it.

Conclusion

While the right to nationality is declared as a fundamental human right by the Universal Declaration of Human Rights and some international conventions, its specific application on foundlings is still a matter of State prerogative and discretion.  A State has the exclusive prerogative to determine who its citizens are, which may be limited only by international obligations that the State itself has assumed in International Law.

Some States already give their nationality to foundlings found in their territory ex lege. However, there is no indication that such practice is done out of a sense of legal obligation, or in recognition of what States believe to be a rule of customary international law.

The 1961 Convention on the Reduction of Statelessness has implemented provisions to secure the right of foundlings to a nationality, and impose an obligation on States to ensure its observance by giving their nationality on foundlings found on their territory. However, being a mere treaty or conventional obligation, the same is binding only upon States which are parties to the Convention. Furthermore, not having been generally accepted by States, it cannot be lightly assumed that its provisions on foundlings have crystallized into the establishment of an obligation that exists outside of the Convention as a matter of general practice accepted as law.

Absent a national law or an international convention where a State has agreed to assume an obligation to confer its nationality on a foundling found in its territory, the right of a foundling to nationality cannot be enforced by an action against the State. It is not a right that enforces itself by its own inherent value.

Thus, the right of foundlings to a nationality will just be an empty rhetoric unless States accord it due respect and take measures, internally and internationally, to implement the right. Foundlings in States that have no national laws, and which are not parties to international conventions, that give foundlings their nationality may, therefore, find themselves stateless, and International Law affords no remedy.

Endnotes:

[1] Dean, University of St. La Salle College of Law; Author: Public International Law Bar Reviewer; MCLE Lecturer & Bar Reviewer on Public International Law

[2] European Union Democracy Observatory on Citizenship, The EUDO Glossary on Citizenship and Nationality, available at http://eudo-citizenship.eu/databases/citizenship-glossary/glossary [accessed on September 7, 2015]

[3] H.C. Black, Black’s Law Dictionary (5th ed. 1979)

[4] Oxford English Dictionary, Oxford University Press, 1989

[5] Ibid.

[6] Boleslaw A. Boczek, International Law: A Dictionary, Scarecrow Press Inc., 2005, p. 188

[7] See the European Union Democracy Observatory on Citizenship’s Glossary “Citizenship or Nationality?” available at http://eudo-citizenship.eu/databases/citizenship-glossary/terminology [accessed on September 7, 2015], which makes the following discussion about Russia:

“While modern international law uses the term ‘nationality’ to refer to the legal bond between an individual and a sovereign state, Russian domestic law uses the term ‘citizenship’ (grazdanstvo – гражданство). According to Russian legislation there is striking difference between citizenship (grazdanstvo – гражданство) and nationality (national’nost’ – национальность).  In consequence, in the Russian context the term citizenship cannot be used as a synonym for nationality.

“The Constitution of the Russian Federation distinguishes between these two legal definitions. Thus, under Article 6 of the Russian Constitution citizenship (grazdanstvo – гражданство) of the Russian Federation shall be acquired and terminated according to federal law; it shall be one and equal, irrespective of the grounds of acquisition (Article 6 (1); a citizen of the Russian Federation may not be deprived of his or her citizenship (grazdanstvo – гражданство) or of the right to change it (Article 6 (3). At the same time, with regard to Article 26 (1) of the Russian Constitution the term ‘nationality’ (national’nost’ – национальность) is associated with the ethnicity of the person: ‘Everyone shall have the right to determine and indicate his nationality (national’nost’ – национальность). No one may be forced to determine and indicate his or her nationality (national’nost’ – национальность).’ As a result, in the Russian language, the term nationality (national’nost’ – национальность) refers to individual membership in a nation (нация) as a cultural, linguistic and historic community.”

[8] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

[9] Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955

[10] League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137

[11] Jus soli literally means “right of the soil.”

[12] UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117

[13] Supra.

[14] Supra.

[15] Ibid., Art. 4

[16] Ibid., Articles 14, 15, 16, 20, 22, 23

[17] Ibid., Articles 13, 15, 17, 18, 19, 21, 26

[18] UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175

[19] Article 38, paragraph 1(b), Statute of the International Court of Justice, 18 April 1946

[20] See Ian Brownlie, Principles of Public International Law, at p. 3 (Fifth Ed. 1998)

[21] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

[22] René de Groot, Survey on Rules on Loss of Nationality in International Treaties and Case Law, CEPS Papers in Liberty and Security in Europe, No. 57/August 2013, available at: http://core.ac.uk/download/pdf/16514111.pdf  [Accessed on August 20, 2015]

[23] Ian Brownlie, Principles of Public International Law, at p. 14 (Fifth Ed. 1998)

[24] L. Malone, International Law, Emanuel Publishing Corporation, 1998, at p. 118

[25] Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968)

[26] UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV)

[27] UN General Assembly, Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally : resolution / adopted by the General Assembly, 6 February 1987, A/RES/41/85

[28] ICJ Statute, Art. 38(1)(a)

[29] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

[30] Vienna Convention, Article 2(1)(a)

[31] ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. Reports 1969, p.3, International Court of Justice (ICJ), 20 February 1969

[32] Id. at par. 28

[33] Vienna Convention, supra., Art. 34

[34] Id., Art. 35

[35] Council of Europe, European Convention on Nationality, 6 November 1997, CETS 166

[36] League of Arab States, Arab Charter on Human Rights, 12 Int’l Hum. Rts. Rep. 893, May 22, 2004

[37] Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration, 18 November 2012

[38] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969

[39] Regional Treaties, Agreements, Declarations and Related, Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 26 May 1995

[40] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171

[41] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3

[42] Supra

[43] Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990)

[44] UN Human Rights Committee (HRC), CCPR General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989

[45] M.J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights, Martinus Nijhoff Publishers, 1987

[46] Id. at pp. 466-467

[47] General Comments No. 17, supra., par. 8

[48] League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137

[49] UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175

[50] Supra

[51] Organization of the Islamic Conference (OIC), Covenant on the Rights of the Child in Islam, June 2005, OIC/9-IGGE/HRI/2004/Rep.Final

[52] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

[53] ICJ Statute, Article 38(1)(b)

[54] Title III, Chapter 1, § 301, 8 U.S.C. 1401, available at https://www.law.cornell.edu/uscode/text/8/1401 [accessed 7 September 2015]

[55] Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, available at: http://www.refworld.org/docid/48106cf72.html %5Baccessed 12 September 2015]

[56] Austria: Federal Law Concerning the Austrian Nationality (Nationality Act 1985) (last amended 2006) [Austria], 30 July 1985, available at: http://www.refworld.org/docid/3ae6b52114.html %5Baccessed 22 September 2015]

[57] Law for the Bulgarian Citizenship (last amended February 2013) [Bulgaria], 5 November 1998, available at: http://www.refworld.org/docid/49622ef32.html %5Baccessed 10 September 2015]

[58] Law on Croatian Citizenship (last amended 1993), 26 June 1991, available at: http://www.refworld.org/docid/3ae6b4dc14.html %5Baccessed 10 September 2015]

[59] Act on the Acquisition of Danish Nationality (amended to 2004) [Denmark], Consolidated Act No. 113 of 20 February 2003, with the amendments following from Act No. 311 of 5 May 2004, 7 June 2004, available at: http://www.refworld.org/docid/4e5cf36d2.html %5Baccessed 10 September 2015]

[60] Nationality Act (359/2003) [Finland], 359/2003, 1 June 2003, available at: http://www.refworld.org/docid/3ae6b51614.html %5Baccessed 7 September 2015]

[61] Greek Nationality Code [Greece], Law 3284/2004, 10 November 2004, available at: http://www.refworld.org/docid/4c90edcf2.html %5Baccessed 12 September 2015]

[62] Act LV of 1993 on Hungarian Citizenship [Hungary], 1 October 1993, available at: http://www.refworld.org/docid/3ae6b4e630.html %5Baccessed 12 September 2015]

[63]Italian Parliament, Law No. 91 or 1992, 15 August 1992, available at http://www.culture.gouv.fr/entreelibre/Laurette/country/italytxt.html [accessed 12 September 2015]

[64] Civil Code of Spain (as approved by Royal Decree of 24 July 1889), available at http://www.wipo.int/wipolex/en/text.jsp?file_id=221319 [accessed 12 September 2015]

[65] Swedish Citizenship Act (with amendments up to and including SFS 2006:222) [Sweden], 30 April 2006, available at: http://www.refworld.org/docid/4e6628972.html %5Baccessed 12 September 2015]

[66] British Nationality Act 1981, 1981 Chapter 61, 30 October 1981, available at: http://www.refworld.org/docid/3ae6b5b08.html %5Baccessed 12 September 2015]

[67] India: Act No. 57 of 1955, Citizenship Act, 1955, 30 December 1955, available at: http://www.refworld.org/docid/3ae6b57b8.html %5Baccessed 7 September 2015]

[68] Ko Swan Sik, Nationality and International Law in Asian Perspective, Martinus Nijhoff Publishers, 1990, at p. 77

[69] Citizenship Act [],  15 November 1948, available at: http://www.refworld.org/docid/3ae6b50414.html %5Baccessed 21 September 2015]

[70] Republic of Korea: Law No. 16 of 1948, Nationality Act (last amended 2010) [Republic of Korea], 20 December 1948, available at: http://www.refworld.org/docid/3fc1d8ca2.html %5Baccessed 7 September 2015]

[71] Law No. 26 of 1975 Concerning Egyptian Nationality [], Official Journal No. 22, 29 May 1975, 29 May 1975, available at: http://www.refworld.org/docid/3ae6b4e218.html %5Baccessed 7 September 2015]

[72] Law No. (46) of 1963 – Iraqi Nationality,1963, available at: http://www.refworld.org/docid/3ae6b4ec38.html %5Baccessed 7 September 2015]

[73] Nationality Law, 1959, 1959, available at: http://www.refworld.org/docid/3ae6b4ef1c.html %5Baccessed 7 September 2015]

[74] Nationality Act, 25 June 1975, available at: http://www.refworld.org/docid/3ae6b5238.html %5Baccessed 7 September 2015]

[75] Law No. 1970-86, 15 December 1970, Nationality Law, 18 December 1970, available at: http://www.refworld.org/docid/3ae6b4d714.html %5Baccessed 7 September 2015]

[76] Belizean Nationality Act 1981, 28 November 1981, available at: http://www.refworld.org/docid/3ae6b50ac.html %5Baccessed 7 September 2015]

[77] Costica Dumbrava, Citizenship Policies in Eastern Europe: Acquisition and Loss of Citizenship in Sixteen Post Communist Countries (2007), at p. 31, available at http://www.etd.ceu.hu/2007/dumbrava_costica.pdf [accessed on 7 September 2015]

[78] ICJ, North Sea Continental Shelf cases, supra., at par. 74

[79] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986

[80] Id., par. 186

[81] ICJ, North Sea Continental Shelf cases, supra., at par. 77

[82] Nationality Act (359/2003) [Finland], 359/2003, supra.

[83] Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.

[84] Title III, Chapter 1, § 301, 8 U.S.C. 1401

[85] Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.

[86] Austria: Federal Law Concerning the Austrian Nationality (Nationality Act 1985), supra.

[87] British Nationality Act 1981, 1981 Chapter 61, 30 October 1981, available at: http://www.refworld.org/docid/3ae6b5b08.html %5Baccessed 12 September 2015]

[88] International Law Association, Final Report of the Committee on Formation of Customary (General) International Law, Statement of Principle Applicable to the Formation of General Customary International Law, International Law Association London Conference 2000, available at http://www.ila-hq.org/download.cfm/docid/A709CDEB-92D6-4CFA-A61C4CA30217F376 [accessed on September 7, 2015]

[89] Id. Section 21

[90] Id. Section 24

[91] Id. Section 26

[92] Id. Section 26

[93] ICJ, North Sea Continental Shelf cases, supra., at par. 71

[94] Id.

[95] League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Laws, supra.

[96] Id.

[97] UN General Assembly, Convention on the Reduction of Statelessness, supra.

[98] Supra

[99] See Articles 25 & 26, Convention on Certain Questions Relating to the Conflict of Nationality Laws, supra.

[100] United Nations Treaty Collection, Convention on Certain Questions relating to the Conflict of Nationality Laws, Ratifications or definitive accessions, available at https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en [accessed 9 September 2015]

[101] Id.

[102] United Nations Treaty Collection, 1961 Convention on the Reduction of Statelessness, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en [accessed 9 September 2015]

[103] Council of Europe Treaty Office, European Convention on Nationality, Status of Ratifications, avaialable at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=166&CM=&DF=&CL=ENG [accessed 9 September 2015]

The Importance of Early Diagnosis of Dengue for its Successful Treatment

Cardio MonitorThank you, Lord, our son is now recovering & we might already transfer to a regular room with a flat screen QHD TV tomorrow. This had been our TV set since yesterday when our doctor transferred my son to the pediatric ICU for closer monitoring. It only has one channel, but it beeps, and at least the display is colored. Hehe

Our experience this week shows the importance of early detection of dengue for its early and proper treatment. On the first day of his high fever, Ollie already brought our son to his pedia, Dr. Mary Johnson Cabaluna. However, since he also had symptoms of cough and cold, and also of asthma, he was just given medication for those conditions.

On the second day of his high fever, and suspecting that it could be dengue, Ollie called up Dr. Cabaluna to tell her about that our son had been manifesting symptoms of dengue fever. Dr. Cabaluna advised a Dengue NS1 Antigen Test. We immediately had him tested for NS1 Antigen and IgG and IgM. While IgG and IgM test was negative, the NS1 Antigen test was positive. We messaged the copy of the test results to Dr. Cabaluna & waited for her instructions. However, we learned that she still had class in the College of Medicine, and so we immediately called up several hospitals to check for available rooms & to make a reservation.

One should not wait for a CBC-platelet test for an indication of a decrease in platelet & white blood cells, and a high level of hematocrit in the blood. Those parameters would usually manifest themselves only on the 3rd to 4th day of having high fever and one may already be dehydrated by that time. Rapid tests are now available to determine the presence of the dengue virus in the body even on just the first day of having fever. These are the NS1 Antigen and IgG and IgM tests, also known as Dengue Duo Tests, where the results are known in less than an hour. With that, the proper treatment and management of the illness can immediately begin.

Hence, on the early evening of the 2nd day of his fever, we already brought our son to the hospital, and Dr. Cabaluna met us at the Emergency Room. There is yet no known medicine against dengue and it is, therefore, essential that one gets an essential supply of electrolytes and hydration thru IV to prevent dehydration during the febrile phase of the illness. That is very important to strengthen the body’s immune system so it can produce the necessary antibodies against the dengue virus.

Knowing that the nutrients you get from the IV are not really sufficient, we made sure that our son gets all the oral supplements he needed. Ollie would prepare fruit & vegetable juices for him, and I would squeeze fresh oranges. Fresh buko juice is also needed for electrolytes replacement. Balut soup also helps out in restoring blood platelets. Hi-calcium milk is also very important in addition to having plenty of mineral water. These are the survival juices he needed to boost his immune system, especially at a time when he still had no appetite for solid food.

On our fourth day in the hospital, and the first day of the critical phase of the illness, our son had been complaining of difficulty in breathing. An ECG test was immediately conducted and suspecting the possibility of myocardiatis or the inflammation of the heart muscles due to the viral infection, Dr. Cabaluna immediately transferred him to the pediatric ICU for closer monitoring. It is always best to be sure. She also ordered a Troponin Test to rule out the possibility of a heart attack. But thanks God, the Troponin Test was negative and myocardiatis has also been ruled out.

Patients who do not survive the critical phase of the illness, which is usually the 24 to 48 hours after the fever is gone, are those whose conditions are not diagnosed earlier and who, therefore, receive treatment late. To learn more about dengue, its diagnosis and treatment, please check out the Guidelines published by the World Health Organization (WHO) => http://www.who.int/…/publica…/documents/dengue-diagnosis.pdf and also the Guidelines published by the Department of Health (DOH) => http://www.doh.gov.ph/…/revised_%20dengue_clinical_manageme…

For our son’s treatment, we would like to thank the expertise and care provided by Dr. Mary Johnson Cabaluna, Dr. Rea Lara Asparin, and the resident physicians at the Bacolod Doctor’s Hospital. With their aggressive approach to the treatment of dengue, we did not reach the point where we have to prepare for standby blood. We also appreciate the care and smiles provided by the nurses and staff at Station 6 and Station 2 of the Doctor’s Hospital. We also thank all our relatives and friends for your concern and all the prayers you have offered. To God be the glory!

Falling in Love with the Study of Law

Two weeks ago, I received a private message from a law student about her problem with memorizing and remembering the law. Since she had shared my reply on her Facebook timeline, I guess I also have to share it with all of you. My reply:

“You’re right, no one can memorize all the law. But who needs to? The law is already written, mostly codified, and is immediately available in just one click of a button.

“Since your teachers are saying you know too much, then you must not have a problem remembering the law after all. So probably, your teacher is also right that you tend to miss what the question is all about.

“If that is the case, the problem is not about remembering what you have read, but about picking up the correct information from all that you have read.

“MY SUGGESTION IS VERY SIMPLE: YOU SHOULD NOT STUDY THE LAW MERELY FOR THE SAKE OF DOING WELL IN RECITATIONS, PASSING YOUR LAW SCHOOL EXAMS, SURVIVING LAW SCHOOL, HURDLING THE BAR, OR BECOMING A LAWYER. YOU HAVE TO STUDY THE LAW BECAUSE YOU ARE IN LOVE WITH THE STUDY OF THE LAW.

“CREATE A THEATER OF DIFFERENT HUMAN ACTIVITIES IN YOUR MIND, AND SEE THE LAW IN ACTION. VISUALIZE HOW THE LAW INTERACTS WITH PEOPLE AND THE SOCIETY, HOW IT OFFERS SOLUTIONS TO PROBLEMS, HOW IT FACILITATES TRANSACTIONS, HOW IT NURTURES RELATIONSHIPS, HOW IT PRESERVES ORDER, AND HOW IT AFFECTS HUMAN THOUGHT. WHEN YOU CAN DO THIS, THE LAW WILL COME TO LIFE, AND YOU WILL SEE IT EVERYWHERE, AND YOU WILL FALL IN LOVE WITH THE STUDY OF LAW.

“AND WHEN YOU FALL IN LOVE WITH THE STUDY OF LAW, YOU WILL NEVER FORGET IT AGAIN. AND THE KNOWLEDGE THAT IT GIVES, YOU CAN NO LONGER UNLEARN IT. IT WILL BE YOURS FOREVER.”

Congratulations to the Enrollees of the Online Clinic & Coaching on Bar Exam Answering Techniques who Successfully Passed the 2014 Philippine Bar Exams

I’m glad to have been a part of the preparation of the following of the 2014 Bar Passers through my Online Clinic & Coaching on Bar Answering Techniques. To God be the glory!!

  1. Alonzo, Katherine – Cor Jesu College
  2. Arellano, Alvin Anthony – Cagayan State University
  3. Atitiw, Victor Corpus – Louis University
  4. Aton, Carla Zoila – University of San Carlos
  5. Balt, Al-rashid – Mindanao State University
  6. Bareng, Shiel Joy – New Era University
  7. Birao, Emmanuel – University of San Carlos
  8. Brillantes, Constanza – University of Santo Tomas
  9. Chaguile, Michelle – Arellano University
  10. Co, Joahn – Far Eastern University
  11. Conde, Eduard – University of San Carlos
  12. De Guia, Anne Rose – University of Santo Tomas
  13. Doria, Loreto – Bohol Institute of Technology
  14. Dumalasa, Sean Paulo – University of Nueva Caceres
  15. Endaluz, Marie Jourgen – Ateneo de Manila
  16. Fernandez, Antonio Timothy – Louis University
  17. Galagar, Philip – Ateneo de Davao
  18. Hirang-Olave, Katrina Isabel – Lyceum of the Philippines
  19. Javiña-Rodriquez, Jean Violette – University of Perpetual Help
  20. Kalang-ad, Manuel – University of Cordilleras
  21. Laurito, Karen – Far Eastern University
  22. Lingao, Cherrylette – San Beda College
  23. Lo, Rhodora – University of St. La Salle
  24. Madrid, Kristoffer Gabriel – University of the Philippines
  25. Magbanua, Mary Angela – University of St. La Salle
  26. Mandigma-Aguila, Jenny – Arellano University
  27. Millena, Rebeca – San Beda College
  28. Monsanto-Nedamo, Kristine Athena – University of Cebu
  29. Moraña, Aimee – University of Northeastern Philippines
  30. Nepomuceno, Tarcila – Arellano University
  31. Nuega, Gregory Andan – University of San Jose-Recoletos
  32. Nuestro, Noel – University of Batangas
  33. Orcullo, Hazel Beth – Ateneo de Davao
  34. Pangan, Ma. Angela – Angeles University Foundation
  35. Quinto, Ramiila – San Beda College
  36. Saquilabon, Christian Lel – Far Eastern University
  37. Singco, Jon – University of San Carlos
  38. Suarez-Rotugal, Arra Jolly – University of Nueva Caceres
  39. Suyu, Richard – Cagayan State University
  40. Tabugon, Jonathan – Cor Jesu College

Notice to Facebook, a Hoax

The HOAX about giving Facebook a notice declaring rights over all personal data, drawings, paintings, photos, texts etc… and telling Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, etc… has again resurfaced and became viral.

The said notice that people have been sharing on their timelines cites Articles L.111, 112 and 113 of the “code of intellectual property,” but code of which country? The said provisions may be referring to the Intellectual Property Code of France (http://www.legifrance.gouv.fr///version/3/file/Code_35.pdf), so how can such a domestic French statute protect you? It also invokes UCC 1 1-308 – 308 1 – 103, which may be referring to the Uniform Commercial Code of the U.S., but said provisions of the UCC do not deal with intellectual property rights. You can check the wordings of the said provisions at www.law.cornell.edu/ucc/1. If the UCC refers to the Universal Copyright Convention, adopted in 1952, said Convention does not contain those article or provision numbers. You can check out the UCC at http://bit.ly/UNESCO_UCC.

Lastly, to scare the hell out of Mark Zuckerberg, the notice also cites the Rome Statute, which established the International Criminal Court. However, said statute only deals with the crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. Here is the full text of the Rome Statute http://www.icc-cpi.int//ea9aeff/0/rome_statute_english.pdf.

I think the best way to protect the privacy and ownership of your personal data, photos, writings, etc. against Facebook is simply not to use Facebook. When one signs up for a Facebook account, you agree on its terms and conditions. In case you did not actually read them before clicking “I agree,” paragraph 2 of the Facebook Statement of Rights and Responsibilities states that: “You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.” However, paragraph 2.4 also adds that: “When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture), and as to ownership of your intellectual properties, paragraph 2.1 provides that: “For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

For the complete Facebook terms and conditions, please check outwww.facebook.com/legal/terms. If you think you may have mistakenly agreed with them, you simply have to delete your Facebook account to immediately terminate the IP License you’ve given Facebook over all the data, photos, videos, texts, and other information you have posted.

Posting the said notice, however, does nothing at all to protect your privacy rights and the ownership of the things you have posted on Facebook.

Online Clinic & Coaching on Bar Exam Answering Techniques F.A.Q.’s

What is this Online Clinic & Coaching?

This is the original and the first individualized online workshop on the “Art of Answering Bar Exam Questions” for the Philippine Bar Examinations. It is based on the theory that passing the Bar Exams requires three L’s: Language, Logic and Law. However, what Bar takers usually focus on is a review of the Law only, often taking the other two L’s, Language and Logic, for granted. So, this online clinic seeks to supplement your regular Bar Review with individualized diagnostics and coaching on the proper way to answer Bar Exam essay problems and questions.

What is the goal?

The goal is not to teach you what the law is, but how to answer Bar Exam essay questions. It will be a clinic in the sense that we will try to diagnose and find solutions to your problems in answering Bar Exam questions, be they related to English grammar and composition, issue-spotting, logic and reasoning, or the way you present your answers.

Who conducts the clinic?

I single-handedly conduct the clinic based on my experience in teaching Bar Exam Techniques in different Bar review centers since 2002, and in checking thousands of exam notebooks as a law professor since 1998. I do not accredit others to do it to ensure the quality of the checking and critiquing of answers. I do this only on the side, and that’s why I can only accept a limited number of Bar takers or students depending on what my schedule allows.

How does it work?

The program normally consists of 12 exercises, which I will email one at a time with the corresponding instructions. After receiving your answers, I will give you feedback, comments, tips and suggestions based on your own unique problems.

What is the schedule?

It depends on your own time and schedule. You can register and begin the workshop any time it is convenient to you. If you submit your answers to the exercises promptly and regularly, you can complete the program in about 4 weeks. However, during the pre-Bar review months I prefer to conduct the clinic in batches as I can only accept a limited number that I can handle.

How much is the registration fee?

The registration fee is a one-time payment of P3,000 only. However, I reserve the right to change this rate at any time.

How to register?

You can register by text, PM, or email. Click “Sign Up” for instructions.

After submitting your registration, we will contact you within the day if you registered by text, or within a day or two if you registered by PM or email, to confirm availability of a slot, and for further instructions to complete your registration.

Is this a Bar Review?

No, this online clinic is not a Bar review. It’s purely an online workshop on answering Bar exam essay problems. I only discuss legal provisions and principles only insofar as they become relevant to the exercises. So, the focus of the coaching is on the presentation, grammar and reasoning used in answering, not much on the subjects or substance of the answers.

Should you be online at some specific time?

No, you can simply answer at your own convenience and time after receiving each exercise. There is no deadline in submitting answers so you are in control of your pacing.

Is this coaching also open to law students?

Yes, you have to learn the art of answering Bar exam questions as early as possible. The earlier you learn this art, the more you would become a master of it by the time you take the Bar Exam. However, this coaching requires that you already have a working knowledge of the fundamental concepts of Constitutional Law, Criminal Law, and Civil Law, and so you should at least be in your second year in law school.

Are suggested answers given?

Yes, when I give my feedback on your answers, I also give suggested answers. When the exercises given are actual Bar Exam questions, I also give an actual answer from a Bar topnotcher, which provides for a great learning experience.

Do the exercises follow the sequence of Bar subjects?

No, this is not a Bar review so the exercises do not follow the sequence of subjects in the Bar Exams. Instead, they follow a particular sequence of lessons and tips on the Art of Answering Bar Exam Questions. Each exercise also covers a different type of Bar question.

Is handwriting also checked?

Yes, if you think you have a problem with your handwriting & want me to have a look at it, then you may send me some samples of your handwriting like scanned copies of your previous exam booklets in law school, and I will give you my feedback and suggestions.

Should the exercises be answered based on stock knowledge only?

Ideally, you should answer the exercises based on your stock knowledge. However, if you find them difficult, you may always check your notes and study the applicable law and jurisprudence before answering. The purpose of this online clinic is not to test your legal knowledge and recall of legal provisions and principles, but your skill in answering questions the proper way. What’s important is that you close your notes and references during the actual writing of your answer.

Does my registration expire?

Technically, it does not expire. You may go slow or go fast depending on your own time and convenience. In case you get busy and you can’t answer the exercises regularly, you can simply stop for a while and just continue when you have the time. However, since I will be accepting another batch of enrollees for the following Bar Exam year, I expect you to finish the exercises within a year from signing up. But if you plan to defer, just inform me and we’ll move your coaching to another year.

Is there a guarantee that you will pass the Bar after this coaching?

No, there is no guarantee. Passing the Bar Exams involves a lot of variables. But this online clinic will help you improve on one of the important variables, that is, your skill in presenting your answer the topnotcher’s way.

Enrollees of my Online Coaching who successfully passed the 2014 Bar Exams:

  1. Alonzo, Katherine – Cor Jesu College
  2. Arellano, Alvin Anthony – Cagayan State University
  3. Atitiw, Victor Corpus – Louis University
  4. Aton, Carla Zoila – University of San Carlos
  5. Balt, Al-rashid – Mindanao State University
  6. Bareng, Shiel Joy – New Era University
  7. Birao, Emmanuel – University of San Carlos
  8. Brillantes, Constanza – University of Santo Tomas
  9. Chaguile, Michelle – Arellano University
  10. Co, Joahn – Far Eastern University
  11. Conde, Eduard – University of San Carlos
  12. De Guia, Anne Rose – University of Santo Tomas
  13. Doria, Loreto – Bohol Institute of Technology
  14. Dumalasa, Sean Paulo – University of Nueva Caceres
  15. Endaluz, Marie Jourgen – Ateneo de Manila
  16. Fernandez, Antonio Timothy – Louis University
  17. Galagar, Philip – Ateneo de Davao
  18. Hirang-Olave, Katrina Isabel – Lyceum of the Philippines
  19. Javiña-Rodriquez, Jean Violette – University of Perpetual Help
  20. Kalang-ad, Manuel – University of Cordilleras
  21. Laurito, Karen – Far Eastern University
  22. Lingao, Cherrylette – San Beda College
  23. Lo, Rhodora – University of St. La Salle
  24. Madrid, Kristoffer Gabriel – University of the Philippines
  25. Magbanua, Mary Angela – University of St. La Salle
  26. Mandigma-Aguila, Jenny – Arellano University
  27. Millena, Rebeca – San Beda College
  28. Monsanto-Nedamo, Kristine Athena – University of Cebu
  29. Moraña, Aimee – University of Northeastern Philippines
  30. Nepomuceno, Tarcila – Arellano University
  31. Nuega, Gregory Andan – University of San Jose-Recoletos
  32. Nuestro, Noel – University of Batangas
  33. Orcullo, Hazel Beth – Ateneo de Davao
  34. Pangan, Ma. Angela – Angeles University Foundation
  35. Quinto, Ramiila – San Beda College
  36. Saquilabon, Christian Lel – Far Eastern University
  37. Singco, Jon – University of San Carlos
  38. Suarez-Rotugal, Arra Jolly – University of Nueva Caceres
  39. Suyu, Richard – Cagayan State University
  40. Tabugon, Jonathan – Cor Jesu College

Enrollees of my Online Coaching who successfully passed the 2013 Bar Exams:

  1. Apdua, Arnold – University of the East
  2. Bautista, Alvin – Bulacan State University
  3. Borigas, Mickel – University of Batangas
  4. Busangilan, Mira Ciele – Bulacan State University
  5. Calimbas, Monica – Cor Jesu University
  6. Cortez, Ailyn – Arellano University
  7. Duque, Bernice Michelle – Silliman University
  8. Fernandez, Trisha Isabelle – University of the Philippines
  9. Kwok, Maris Donna – San Beda College
  10. Laiño, Arfil Joy – University of St. La Salle
  11. Lucero, Ian Kenneth – University of San Jose-Recoletos
  12. Nacua, Bernadine – University of San Carlos
  13. Pablo-Nepomuceno, Czarina – San Beda College
  14. Pe-Benito, Armi Christie – Saint Louis University
  15. Pichay, Olivia Emmanuelle – Ateneo de Manila University
  16. Roldan-Advincula, Michelle – Cor Jesu University
  17. Señor, Nes PatrickSan Beda College Alabang
  18. Silva, Julie Ann – University of Santo Tomas
  19. Tan, Ma. Donnabel – University of the Philippines
  20. Tepora, Marian – Perpetual Help College
  21. Uy, Herazeus Christine – University of Santo Tomas
  22. Villalobos, Maria Kamille – Lyceum University

About Me

I am a product of the public elementary school system in Minalin, Pampanga. I did not grow up speaking English as a 1st language. In fact, English was my weakest subject from my grade school to my pre-law years. But in my wish to steal a slot in the top 10 of the Bar Exams, I turned English into one of my strongest weapons in the Bar exams. I have found that answering Bar exam questions is an art. It is not an inborn skill. You must learn the techniques, rules and strategies and master them through constant practice and exercises. After learning the art and using it in law school, I have graduated Magna Cum Laude in 1997 with a grade point average of 1.33 from the University of St. La Salle in Bacolod City. And after mastering the art and using it in the Bar exams, I now hold the singular distinction of being the first Bar Topnotcher from La Sallian law school after placing 10th in the 1997 Bar Exams with a grade of 86.825.

Proclamation No. 1017 Must Fall in the Temple of Constitutionality

Presidential Proclamation No. 1017 was already lifted by Malacañang, yet I am still compelled to write this paper because it is capable of repetition and must still be fought on principles. In fact, the President’s strategy is obvious and this is not the first time she had done it. She would exercise functions that are not ordinarily within the powers of the Chief Executive and then would lift them before the Supreme Court could exercise its power of judicial review.

The first time was on May 1, 2001 on the day of the celebration of the Labor Day. She issued Proclamation No. 38 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion.”
Four petitions were immediately filed challenging the constitutionality of said proclamation and the general orders issued pursuant thereto. However, five days after the issuance of the said proclamation, it was lifted thus prompting the Supreme Court to take a prudential stand and dismiss the petitions on the ground of mootness. The Supreme Court had ruled that it was no longer feasible to look into the sufficiency of the factual basis of the exercise of her powers under the commander-in-chief clause, Proclamation No. 38 having been lifted. (Lacson, et al. v. Perez, et al., G.R. No. 147780, May 10, 2001)

The second one was during the Oakwood Mutiny on July 27, 2003, where she issued Proclamation No. 427 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights.”
This time around, however, the Supreme Court, smelling the President’s sinister strategy, had taken a more pro-active role pursuant to the symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985). The Supreme Court therefore ruled in SANLAKAS and Partido ng Manggagawa v. Executive Secretary, et al., G.R. No. 159085, February 3, 2004, that “to prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President’s calling out power, the mootness of the petitions notwithstanding.”
In Sanlakas, the Supreme Court held that the 1987 Constitution does not expressly prohibit the President from declaring a state of rebellion and that in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Finally, true to its mandate to probe only into the legal consequences of the declaration, the Supreme Court ruled that such a declaration was devoid of any legal significance and that it was deemed not written for all legal intents.

The wordings of Proclamation Nos. 38 and 427 are quite similar in that they simply confirm the existence of a state of rebellion and they both call out the Armed Forces pursuant to Article VII, Section 18 of the 1987 Constitution to suppress and quell the rebellion. It is notable that Proclamation No. 427 went on further to add a specific guarantee that there would be due regard to constitutional rights, even if it would just be a lip service.

Proclamation No. 1017 is therefore the third time for Gloria Macapagal-Arroyo to call out the Armed Forces pursuant to the commander-in-chief clause but this time, she used the term the term and style “state of emergency” instead of a state of rebellion.

A state of emergency takes its roots from the Roman law concept of justitium, which is equivalent to the declaration of a state of exception. It was usually declared following an emperor’s death and in cases of invasions where the sovereign claimed for himself the auctoritas (Latin word for “authority”) to augment his powers as may be necessary to the rule of law. Ironically, this is the same concept that is prevalent Fascist’s Duce and Nazi’s Führer doctrines. In Nazi theory, the Führer, when he exercises auctoritas has no use whatsoever of “written law”, as he is himself the incarnation of law.

A declaration of a state of emergency is not a mere characterization of the fact of the existence of an emergency which does not add anything to the powers of the President, as is claimed by the President’s loyal cohorts, like her new Chief Legal Counsel Eduardo Antonio Nachura, her Justice Secretary Raul Gonzalez and Chief of Staff Michael Defensor. They should know that declaring a state of emergency has a meaning in jurisprudence and history and carries with it some concrete legal implications. You don’t just declare a state of emergency in vacuo. A declaration of a state of emergency may suspend certain normal functions of government, may work to alert citizens to alter their normal behavior, may order government agencies to implement emergency measures, or worse, it may be used as a rationale to suspend civil liberties.

In other countries, however, the declaration of a state of emergency as well as the conferment of emergency powers to their respective Chief Executives is usually governed by law. Canada has passed the 1988 Emergencies Act. Egypt has the Emergency Law of 1958. France has the Emergency Law of 1955. The United Kingdom has the Civil Contingencies Act of 2004. In Hungarian Constitution, it is their Parliament that has the power to declare a state of emergency. Their common denominator is that the declaration of a state of emergency that justifies the conferment of powers not normally exercisable by their chief executives is governed by law. In the Philippines, we have no such law.

On February 24, 2006, Gloria Macapagal-Arroyo issued Proclamation No. 1017 stating in part that:

“NOW, THEREFORE, I Gloria Macapagal-Arroyo, x x x by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution x x x do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.”
Similar to Proclamation Nos. 38 and 427, Proclamation No. 1017 also invokes Section 18, Article VII of the 1987 Constitution. It also calls out the Armed Forces to prevent or suppress rebellion, and also all forms of lawless violence. The difference is that in Proclamation No. 38, we have seen on national television the angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into Malacañang – a clear case of lawless violence necessitating the use of the calling out powers of the President. In Proclamation No. 427, we have also seen on national television how some three hundred junior officers and enlisted men of the Armed Forces stormed into the Oakwood Premiere apartments in Makati City. But in Proclamation No. 1017, what we have seen on national television are only a bunch of people marching on the streets celebrating the 20th Anniversary of the 1986 People Power Revolt, a plain and peaceful exercise of freedom of speech and expression and the right of assembly. We have not seen any lawless violence, except the violent dispersals of those peaceful exercises of fundamental civil liberties.

PROCLAMATION NO. 1017 IS VOID ON ITS FACE. By calling out the Armed Forces to enforce obedience to all decrees, orders and regulations promulgated by the President personally or upon her direction, Gloria Macapagal-Arroyo had clearly arrogated unto herself the exercise of emergency powers, including the power to issue decrees which will have the force and effect of law. This reminds us of Amendment No. 6 to the 1973 Constitution which has given the former Dictator Ferdinand Marcos to issue Presidential Decrees.

Emergency powers to issue decrees which will be enforceable as laws may only be exercised by the President pursuant to an express delegation that may only be made by Congress pursuant to Section 23(2), Article VI of the 1987 Constitution which states that:

“In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”

Even Section 17, Article XII of the Constitution that is cited in Proclamation No. 1017 is a specific provision that relies on the afore-quoted Congressional powers in times of emergency. It must also be noted that Section 17 of Article XII speaks of the State, not the President as Commander-in-Chief, temporarily taking over or directing the operation of “privately-owned public utility or business affected with public interest” “when the public interest so requires,” during the emergency and under reasonable terms prescribed by it – clearly referring to the “declared national policy” and “restrictions” that may be prescribed by Congress pursuant to Section 23(2) of Article VI.

Section 17 of Article XII of the 1987 Constitution speaks of the State and not the President. It does not expressly confer any power or authority on the President. The dictum therefore of Justice Oliver Wendell Holmes in Springer v. Government of the Philippine Islands, 277 U.S. 189, May 14, 1928, should apply, that since the said section does not expressly and specifically vests power on the President or on the Judiciary, it must therefore “fall into the indiscriminate residue of matters within legislative control.

One of the decrees issued by Gloria Macapagal-Arroyo pursuant to Proclamation No. 1017 is General Order No. 5, stating in part that:

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution x x x, and pursuant to Proclamation No.1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police, to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.

GENERAL ORDER NO. 5 IS ALSO VOID ON ITS FACE.  It calls out the Armed Forces and the police force to prevent and repress acts of terrorism and to carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. However, General Order No. 5 does not specifically define what acts of terrorism are. Note further that we have not yet passed the Anti-Terror Bill into law. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law (Connally v. General Construction Co., 269 U.S. 385, cited by our own Supreme Court Ermita-Malate Hotel and Motel Operators Assn., Inc. v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967). Worse, General Order No. 5 gives the AFP and the PNP authority to carry out the necessary and appropriate actions and measures without however defining what these measures are. It confuses, confounds and misleads because overzealous members of the AFP and the police force, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens. Definitely, to borrow the words of Justice Isagani Cruz in Ynot v. IAC, G.R. No. 74457, March 20, 1987, there is here a “roving commission, a wide and sweeping authority that is not canalized within banks that keep it from overflowing, in short, a clearly profligate and therefore invalid delegation of legislative powers.”

A law or regulation is void for vagueness and overbreadth when it fails to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” (Smith v. Goguen, 415 U.S. 566, March 25, 1974) Where a statute’s literal scope, unaided by a narrowing interpretation, is capable of reaching the guarantees of free speech, of the press, and of expression, as in the case of Proclamation No. 1017 and General Order No. 5 in whose names, the Administration attempted to silence the media and the opposition, then it must fall heavily in the temple of constitutionality.

In issuing Proclamation No. 1017 and General Order No. 5, the President also had, in effect, amended Batas Pambansa Bilang 880, entitled “AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES” B.P. Blg. 880 delegates to local government officials the regulation of only the “time, place, and manner” of the exercise of free assembly to ensure public safety and convenience without the power to prohibit rallies. Therefore, for Gloria Macapagal-Arroyo to declare a “no-rally policy” pursuant to Proclamation No. 1017 is to contravene the clear language of B.P. Blg. 880, arrogate unto herself the prerogatives and powers of Congress, and impair the autonomy of local governments which are not subject to the “control powers” of the President.

PROCLAMATION NO. 1017 HAS PLACED THE COUNTRY UNDER A DE FACTO STATE OF MARTIAL LAW. In the name of Proclamation No. 1017, certain personalities have been arrested without judicial warrants, rally permits have been cancelled, all anti-government rallies have been prohibited, the Armed Forces have raided media establishments known to be critical of the Arroyo administration without search warrant and have stationed armed personnel to guard their premises. These acts glaringly show that the country has been effectively placed under a state of undeclared martial law by virtue of Proclamation No. 1017.

The issuance of Proclamation No. 1017 is a circumvention of the constitutional requirements for the imposition of martial law or suspension of the privilege of the writ of habeas corpus. If the President formally proclaims martial law or suspends the privilege of habeas corpus, she cannot avoid congressional and judicial scrutiny into the sufficiency of the factual and legal bases of such declarations. Under Section 18 of Article VII of the 1987 Constitution, such proclamation of martial law or suspension of the privilege of the writ cannot exceed sixty days, unless extended by Congress upon the initiative of the President. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
The Constitution further requires that there must be an invasion or rebellion and public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. While Proclamation No. 1017 simply declares a state of emergency, its implementation however clearly shows that it effectively imposed martial law without following the constitutional requirements for its imposition.

PROCLAMATION NO. 1017 VIOLATES THE CONSTITUTIONAL GUARANTEES OF FREEDOMS OF SPEECH, OF THE PRESS, AND OF ASSEMBLY. Proclamation No. 1017 has been invoked by the government in revoking all rally permits and prohibiting the exercise of the individual’s right to freedom of speech, of expression, and to peaceably assembly. It was also invoked by the authorities when they raided the publication office of the Daily Tribune. The Secretary of Justice and the President’s Chief of Staff had been making statements on national television asking people and the media not to make statements or not to publish things that fuels sentiments against the administration. They accuse the media of being irresponsible in its reporting and threaten it with charges of inciting to sedition.

While it is true that our 1932 Revised Penal Code punishes a crime of Inciting to Sedition, this is however of doubtful constitutionality when applied to a person who is exercising his constitutional rights to freedom of speech, of the press, and of expression. The enjoyment of these rights cannot be punished. They are the keystone of all democratic institutions and their preservation and full enjoyment provide the best assurance against the destruction of all freedom.

An examination of the jurisprudential developments in democratic countries shows that the trend is to give the constitutional guarantee of free press the broadest scope and the widest latitude. As Justice Douglas puts it, “a function of free speech and press under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” (Terminiello v. City of Chicago, 337 U.S. 1, May 16, 1949)

The press is considered as the “Fourth Estate” of our democratic institution and to borrow the immortal words of Congressman Pedro Lopez in his sponsorship speech of R.A. 1289, which amended Art. 360 of the Revised Penal Code on libel, “the press must be unshackled in fulfilling their mission as the eyes, ears, nose, voice and conscience of our people.

Therefore, the press, as the eyes, ears, nose, voice and conscience of the people, will always invite dispute and stir people to anger.  This will always be the role of the press as the fourth estate of our democratic institution.  Indeed, the constitutional guarantee of free press can only have its true meaning if used by a press that asks questions rather than just reports, that makes inquiries rather than just accepts things, and that criticizes rather than just conforms.

The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. (Justice Hugo Black in New York Times v. United States, 403 U.S. 713, June 30, 1971)

The raid on the offices of the Daily Tribune by police and the Director General of the Philippine National Police’s declaration that they will shut down or take over media entities not complying with standard regulations promulgated by them, purportedly Proclamation No. 1017 and General Order No. 5 are serious attack on press freedom. They are types of prior restraint anathema to press freedom in a democratic society. Thus, they come to court with a heavy presumption against their constitutional validity. (Carroll v. Princess Anne, 393 U.S. 175, 181, November 19,. 1968, Bantam Books v. Sullivan, 372 U.S. 58, 70, February 18, 1963; Freedman v. Maryland, 380 U.S. 51, 57, March 1, 1965)

Gloria Macapagal-Arroyo should remember that she rose to the Presidency in 2001 because of the people’s exercise of their freedoms of speech and of assembly to petition the government for redress of grievances. In dismissing the legal challenge to her assumption of the Presidency in 2001, the Supreme Court has held:

“In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President.” (Estrada v. Arroyo, G.R. No. 146738, March 2, 2001)

MOOTNESS OF THE ISSUE SHOULD NOT BE AN OBSTACLE TO THE SUPREME COURT IN EXERCISING ITS SYMBOLIC FUNCTION OF JUDICIAL REVIEW. Even with the lifting of Proclamation No. 1017, the Supreme Court should still take cognizance of the matter and exercise its duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the President. It should still exercise its symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985)

But more importantly, this symbolic function should be used this time to educate the person occupying the highest executive office in the land and her cohorts so that they would be reminded to accord full respect to our fundamental civil liberties.

SHE MUST BE REMINDED THAT THE SURVIVAL OF GENUINE DEMOCRACY IS MADE DEPENDENT UPON THE NON-INTERVENTION OF THE GOVERNMENT IN THE MARKETPLACE OF IDEAS. The marketplace of free ideas should be forever free. They must be reminded of the of the immortal words of Oliver Wendell Holmes, Jr. Abrams v. U.S., 250 U.S. 616, November 10, 1919 that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

SHE MUST ALSO BE REMINDED THAT A PUBLIC STREET IS A PUBLIC FORUM. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. (Hague v. Committee for Industrial Organization, 307 U.S. 496, June 5, 1939)

FINALLY, SHE MUST ALSO BE REMINDED OF THE VALUE OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY, EVEN IN THE FACE OF THREATS FOR THE OVERTHROW OF HER ADMINISTRATION. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. (Chief Justice Charles Evans Hughes in De Jonge v. Oregon, 299 U.S. 353, January 4, 1937)

The Constitution and its Legitimacy

The Constitution is said to be the supreme law of the land. It is considered as the “god of all man-made laws”.[1] This is the Doctrine of Constitutional Supremacy. Isagani A. Cruz captures the essence of this great doctrine in this wise:

“The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of the law by the pretenders to illegitimate power.”[2]

The Constitution is the basis of the validity of all laws and governmental acts. It is the basis of the legitimacy of the very existence of government. It is the basis of the legitimacy of the exercise by government of powers that interfere with personal autonomy and liberty. It is the anchorage of all legitimacy.

The Constitution does not become legitimate just because it is a constitution and while it cannot be unconstitutional, it can however be illegitimate. Constitutionality therefore is one thing and legitimacy is another. Constitutionality is an attribute of governmental acts and laws that do not contravene the Constitution; legitimacy is an attribute of governmental acts and laws, including the Constitution, that makes them at the least, juridically right, acceptable, and necessary.

As the anchorage of all legitimacy, the Constitution must itself be legitimate. Its legitimacy cannot rests on mere conjectures or shaky theories. It cannot simply be assumed. It must rest on solid ground if it is to the basis of the legitimacy of all governmental acts and laws that depend on it for their own legitimacy.

What does legitimacy of the Constitution consist in? Is it in the positive consent of the majority of the people who ordained it as expressed in the process of its ratification? Is it the mere acquiescence of the people it seeks to govern?

In the landmark case of Javellana v. Executive Secretary[3] where the legitimacy of the 1973 Philippine Constitution was put in question, five questions were agreed upon as reflecting the basic issues involved, to wit:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The second, third and fifth questions are important to our present inquiry because they give us an insight on how the Philippine Supreme Court understands and regards the legitimacy of the Constitution.

The second question deals with the validity of the ratification of the Constitution. It is simply a question of whether the applicable procedure for ratification was followed. Chief Justice Teehankee expresses the view that “the act of ratification is the act of voting by the people,” [4] that is, on whether or not they approve a proposed constitution.

Ratification is important in the life of a constitution because it is usually the reckoning point of its effectivity. Most modern constitutions contain a provision that says that they take effect upon their ratification. The procedure for ratification may differ from country to country. In the case of the U.S. Constitution, it provides that “the Ratification of the Convention of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the Same.”[5] In other countries, however, including the Philippines, ratification is usually done by the direct popular vote.

With respect to the 1973 Constitution, there are two ways of looking at its ratification: First, if the 1973 Constitution is to be regarded as a distinctly new Constitution, not a mere amendment to the 1935 Philippine Constitution, then it must be ratified upon its own terms, that is, based upon its own provision for ratification found in Section 16 of its Article XVII that says: “This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose x x x.” Second, if the 1973 Constitution is to be regarded as an amendment to the 1935 Constitution, then the procedure for ratification of amendments found in Article XV, Section 1 of the 1935 Constitution should be complied with. The said article provides that “amendments shall be valid as part of this Constitution (1935) when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.”

The Javellana Court regarded the question of validity of the ratification as dealing with whether or not the 1973 Constitution was validly ratified in accordance with Article XV, Section 1 of the 1935 Constitution. Six (6) members of the Court[6] held that the 1973 Constitution was not validly ratified; three (3) members[7] held that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification; and the last member, Justice Barredo, cast a qualified vote, explaining that:

“x x x I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”

While the majority had voted that there has been no valid ratification, the third question probes into the issue of whether or not the 1973 Constitution was acquiesced in (with or without valid ratification) by the people. In the view of the Javellana Court, the acquiescence by the people can be a sufficient basis of the effectivity of the Constitution. Acquiescence can substitute for the requirement of valid ratification.

On this third question of acquiescence by the people, no majority vote has been reached by the Court. Four of its members[8] held that the people have already accepted the 1973 Constitution; two members[9] held that there can be no free expression, and there has been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the 1973 Constitution; and the other three members[10] expressed lack of knowledge and/or competence to rule on the question.

With a majority saying on the second question that there was no valid ratification, and there being no majority vote reached on the third question with regard to the acquiescence by the people, the 1973 Constitution apparently had no basis for its effectivity. Surprisingly, however, the Javellana Court proceeded to a fifth question on whether the 1973 Constitution was already in force. Surprising, because this fifth question cannot in substance be separated from the second and third questions. Theoretically, the issue of whether the Constitution should be considered to be “in force” or not should just be an outcome of either the validity of its ratification or the acquiescence by the people. If it is neither validly ratified nor acquiesced in by the people, then it cannot be “in force.”

On the fifth question of whether the new Constitution of 1973 is in force, four members of the Court[11] held that it is in force by virtue of the people’s acceptance thereof; another four members[12] cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and two members[13] voted that the 1973 Constitution is not in force, with the result that there were not enough votes to declare that the 1973 Constitution was not in force.[14]

Hence, the 1973 Constitution took effect not by virtue of a valid ratification or by the acceptance of, or acquiescence by, the people, but by the sheer technicality of failure to muster the required two-thirds vote to strike it down and declare it as not in force. Therefore, one would search for the legitimacy of the 1973 Constitution and would find it empty.

Fortunately for the 1987 Philippine Constitution, there is no question as to the validity of its ratification; hence, there is no need to discuss the Filipino People’s acceptance or acquiescence independently of the validity of its ratification.

Now, back to the main inquiry on the legitimacy of the Constitution, is the validity of the ratification sufficient to endow the Constitution with legitimacy? What about people’s acquiescence independently of the validity of its ratification? Is the vote of a bare majority in a plebiscite sufficient to bring legitimacy to the Constitution and make it binding on the whole citizenry? If so, and being a document of founding or refounding of a polity, how can the Constitution be legitimately binding on the minority who have not given their positive consent to its mandate? Does the legitimacy of the Constitution depends merely on the empirically discoverable consent of the governed or is there something more to it like the need for the intrinsic validity of the principles and rules that it embodies?

Richard H. Fallon, Jr. in his article “Legitimacy and the Constitution”[15] argues that the term legitimacy invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy – legal, sociological, and moral. He writes:

“When legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms. As measured by sociological criteria, the Constitution or a claim of legal authority is legitimate insofar as it is accepted (as a matter of fact) as deserving of respect or obedience – or, in a weaker usage that I shall explain below, insofar as it is otherwise acquiesced in. A final set of criteria is moral. Pursuant to a moral concept, legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”[16]

Modern constitution-making is seen by the Federalists as a matter of “reflection and choice.” Alexander Hamilton writes in Federalist No. 1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are capable or not of establishing good government by reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”[17]

Federalism scholar Daniel J. Elazar considers constitutional choice as an art and to bring the constituency to endow the constitution with legitimacy is even a greater art because legitimacy is a commitment that cannot be coerced. He explains:

“Constitutional legitimacy involves consent. It is not a commitment which can be coerced – however much people can be coerced into obedience to a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. The very fact that, while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent, is another demonstration that constitution-making is the preeminent political act.”[18]

The U.S. Constitution provides that “the ratification of the Convention of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”[19] The 1987 Philippine Constitution in turn provides that “this Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitution.”[20]

In modern consitutions, this act of ratification as a way of expressing the “consent of the governed” is regarded as the core of the Constitution’s legitimacy. This consensus that is manifested during ratification gives life and meaning to the phrase “We, the People” that usually begins preambles of modern constitutions. “We, the People” operates to endow the Constitution with legitimacy by announcing from the very start that the Constitution is the handywork of the people, that they are the author, and they are the ones that have breathed life into that foundational document.

[1] Angel Aguirre, Jr. & Ramsey Domingo Pichay, Postulates in Constitutional Law, Revised Edition 1992, Lex Scripta Suprema Publishers, Inc., p. 3
[2] Isagani A. Cruz, Philippine Political Law, Central Lawbook Publishing, Co., Inc. 1991 Ed., p. 11
[3] G.R. No. L-36142, March 31, 1973
[4] Chief Justice Teehankee, Concurring Opinion in De Leon v. Esguerra, G.R. No. 78059, August 31, 1987
[5] Article VII, Constitution of the United States of America
[6] Chief Justice Concepcion and Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
[7] Justices Makasiar, Antonio, and Esguerra
[8] Justices Barredo, Makasiar, Antonio, and Esguerra
[9] Chief Justice Concepcion and Justice Zaldivar
[10] Justices Makalintal, Castro, and Teehankee
[11] Justices Barredo, Makasiar, Antonio, and Esguerra
[12] Justices Makalintal, Castro, Fernando, and Teehankee
[13] Chief Justice Concepcion and Justice Zaldivar
[14] Article VIII, Section 10 of the 1935 Constitution provides that “no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court.”
[15] Richard H. Fallon Jr., Legitimacy and the Constitution, Harvard Law Review, Volume 118 Number 6, April 2005, p. 1787
[16] Ibid., at pp. 1790-1791
[17] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 1
[18] Daniel J. Elazar, Constitution-Making: The Pre-eminently Political Act, Constitutionalism: The Israeli and American Experiences – Chapter 1, http://www.jcpa.org/dje/articles3/constisramer.htm
[19] Article VII, U.S. Constitution
[20] Article XVIII, Section 27, 1987 Philippine Constitution