IS DEMOCRACY SINE QUA NON TO HUMAN RIGHTS?

IS DEMOCRACY SINE QUA NON TO HUMAN RIGHTS?

Researcher: Alexander Diamla Dumpa

Since then, there has been a question on whether or not, the full range of human rights can only be respected and observed in a democratic government. Some argue that such rights are often violated in other forms of government. While some contend otherwise. Nevertheless, status quo shows that this question remains unanswered.

 

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Perhaps almost everyone will agree that human rights are rights that protect our personhood as human beings, and that human rights are characterized by autonomy and liberty. Since it is understood that autonomy is self-legislation and choosing one’s own conception of a worthwhile life, and that liberty is being free to pursue that conception, does it mean, therefore, that one has a right to a fair say in decisions that crucially affect him? And as a citizen or subject of a state, do not most decisions of government affect him? If so, does this mean that a government that does not allow its citizens or subjects to exercise such a right to a fair say in government decision does not respect the latter’s autonomy and liberty? Evidently, only a democratic government ensures such right of fair say, which therefore means respecting one’s autonomy and liberty. If so, is it safe to say then that democracy is indeed sine qua non in the observance of human rights?

In answering the question, the degree of coverage of autonomy and liberty must be considered as well as certain circumstances. History shows that most non-democratic governments are more likely to violate human rights especially in oligarchy and plutocracy. But is this absolute in non-democratic governments? One might argue that, “what about a modern aristocracy of talents, composed of the best judges, philosophers, economists, and public servants that a society has?” Although we are now thinking of a citizenry educated and cohesive enough to be able to form a democracy, still, people may be deprived of what they need and what they want because people do not decide for themselves. But if we say on the other hand, that democracy is better then, in terms of human rights observance, does this mean that it is absolute? No. because even a democratic government, which has proven benevolence and competence, does not automatically and necessarily assure people’s liberty.

Therefore, the answer to the question on whether or not democracy is sine qua non to human rights is: maybe yes and no, depending upon circumstances. But the question on what type of government protects human rights more effectively can be answered with certainty. If we compare which type of government respects human rights more, a government that is run by, of, and for the people is more likely to protect the same, and that is a democratic government. The United Nations thinks so too. Article 21 of the Universal Declaration of Human Rights (1948) provides that:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives…The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

In conclusion, based on research and existing data, the link between democracy and human rights appears to be interdependent, intricate, mutually supportive and symbiotic. In fact, when we define what democracy is, we unconsciously or consciously often use features of human rights to describe the same. A functional democracy that accommodates diversity, promotes equality and protects individual freedoms is increasingly becoming more ideal against the concentration of power in the hands of a few and the abuse of human rights that inevitably results from it. History tells us that when power is given to one person or group of people, abuses, chaos, and tyranny are expected to occur. Evidently, the greatest protection of human rights, therefore, emanates from a sustainable democratic framework grounded in the rule of law.

(This article has been published in the MSU Law Gazette, Vol. 3, No. 1, A.Y. 2017-2018).

Cebu Oxygen and Acetylene Co. v. Berciles (Digested Case)

Re: Closure and opening of roads thru an ordinance (Sec. 21)

FACTS: This is a petition for review of an order dismissing petitioner's application for registration of title over a parcel of land. The parcel of land sought to be registered was only a portion of M. Borces Street, Mabolo, Cebu City. The City Council of Cebu, through a resolution, declared the terminal portion of said street abandoned road. Subsequently, the City Council of Cebu passed another resolution, authorizing the Acting City Mayor to sell the land through a public bidding. Pursuant thereto, the lot was awarded to the herein petitioner. The City of Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner. The petitioner filed an application with the Court of First instance of Cebu to have its title to the land registered. However, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property sought to be registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man. Consequently, it cannot be subject to registration by any private individual.

ISSUES:

(1) WON the City Charter of Cebu City (RA 3857) give the City of Cebu the valid right to declare a road as abandoned.

(2) WON the declaration of the road, as abandoned, make it the patrimonial property of the City of Cebu which may be the object of a common contract.

(3) WON the property in question is registrable by the petitioner.

HELD:

(1) Yes. The pertinent portions of the Revised Charter of Cebu City provides that the city council has the authority "to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or street.

(2) Yes. Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." Since that portion of the city street subject of petitioner's application for registration of title was withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract.

(3) Yes.  Since the withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title over the lot in question.

Cabrera v. Court of Appeals, 195 SCRA 314 (Digested Case)

Re: Closure and opening of roads thru an ordinance (Sec. 21)

FACTS: The Provincial Board of Catanduanes adopted Resolution to close the old road leading to the new Capitol Building of their province and to give to the owners of the properties traversed by the new road equal area as per survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties. Pursuant to a deed of exchange authorized by the Provincial Governor of Catanduanes, the exchange of properties took place. Herein petitioner, filed a petition for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said road. The CA held that pursuant to Republic Act No. 5185, municipal authorities can close, subject to the approval or direction of the Provincial Board, thoroughfares under Section 2246 of the Revised Administrative Code. Although in this case the road was not closed by the municipality of Catanduanes but by the provincial board of Catanduanes, the closure, nevertheless, is valid since it was ordered by the approving authority itself. However, while it could do so, the provincial government of Catanduanes could close the road only if the persons prejudiced thereby were indemnified, Section 2246 of the Revised Administrative Code being very explicit on this. Before us now, the petitioner insists that Sec. 2246 is not applicable because the resolution is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board

ISSUES: 

(1) WON the resolution is valid. 

(2) WON the municipal, and not the provincial board has the authority to issue such resolution.

(3) WON the petitioner has sustained injuries and therefore should be indemnified.

HELD:

(1) Yes. The authority of the provincial board to close that road and use or convey it for other purposes is derived from the provisions of RA 5185 in relation to Section 2246 of the Revised Administrative Code. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed. Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State.

(2) No. There is no reason for not applying the doctrine announced in Favis to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province of Catanduanes for the construction of provincial roads.

(3) No. The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. Here, the petitioners failed to adduce evidence that he indeed sustained injuries. (Damnum absque injuria)

Dacanay v. Asistio, 208 SCRA 404 (Digested Case)

Re: Closure and opening of roads thru an ordinance (Sec. 21)

FACTS: Metropolitan Manila Commission, enacted an ordinance designating certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened up seven (7) flea markets in that city. Upon application of vendors,  the respondents city mayor and city engineer, issued them licenses to conduct vending activities on said street. In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on affected areas. To stop Martinez from clearing the sreets, stallowners filed an action for prohibition. However, shortly after the decision came out in favor of the OIC mayor, the city administration in Caloocan City changed hands. City Mayor Macario Asistio, Jr., as successor of Mayor Martinez, did not pursue the latter's policy of clearing and cleaning up the city streets. Dacanay filed the present petition for mandamus, praying that the public respondents be ordered to enforce the final decision which upheld the city mayor's authority to order the demolition of market stalls on affected streets and to enforce P.D. No. 772 and other pertinent laws.

ISSUES: WON public dominions may be leased or be subjects to contracts.

HELD: No. There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or other contract (Villanueva et al. vs. Castañeda and Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30 SCRA 602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot vs. De la Fuente, 48 O.G. 4860). As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect.

New Sun Valley v. Sangguniang Barangay, G.R. No. 156686, July 27, 2011 (Digested Case)

Re: Closure and opening of roads thru an ordinance (Sec. 21)

FACTS: The Sangguniang Barangay of Barangay Sun Valley issued a Resolution directing the New Sun Valley Homeowners Association to Open Rosemallow and Aster Streets to vehicular and pedestrian traffic. NSV residents, contended that when they bought their residential properties, they also paid proportionately for the roads and the park in then subdivision. They have therefore an existing equity on these roads. To open the roads to public use is a violation of the rights and interests to a secure, peaceful and healthful environment. Further, they claimed that a "Barangay Resolution" cannot validly cause the opening of the subject roads because under the law, an "ordinance" is required to effect such an act.

ISSUE: WON the claim of NSV that a "Barangay Resolution" cannot validly cause the opening of the subject roads because under the law, an "ordinance" is required to effect such an act, is correct.

HELD: No. NSV is incorrect. The requirement under Sec. 21 of the passage of an ordinance by a local government unit to effect the opening of a local road, can have no applicability to the instant case since the subdivision road lots sought to be opened to decongest traffic in the area - namely Rosemallow and Aster Streets – have already been donated by the Sun Valley Subdivision to, and the titles thereto already issued in the name of, the City Government of Parañaque since the year 1964. Having been already donated or turned over to the City Government of Parañaque, the road lots in question have since then taken the nature of public roads which are withdrawn from the commerce of man, and hence placed beyond the private rights or claims of herein Appellant. Accordingly, NSV was not in the lawful exercise of its predicated rights when it built obstructing structures closing the road lots in question to vehicular traffic for the use of the general Public. Consequently, defendant’s act of passing the disputed barangay resolution, the implementation of which is sought to be restrained by Appellant, had for its purpose not the opening of a private road but may be considered merely as a directive or reminder to the Appellant to cause the opening of a public road which should rightfully be open for use to the general public.

FORTICH v. CORONA, 312 SCRA 751 (Digested Case)

Re: Reclassification of lands thru an ordinance (Sec. 20)

       Finality of decisions

FACTS: The strikers protested the March 29, 1996 Decision of the Office of the President (OP), which approved the conversion of a 144-hectare land from agricultural to agro-industrial/institutional area. This led the Office of the President to issue the so-called "Win-Win" Resolution, substantially modifying its earlier Decision after it had already become final and executory. The said Resolution modified the approval of the land conversion to agro-industrial area only to the extent of 44 hectares, and ordered the remaining 100 hectares to be distributed to qualified farmer-beneficiaries.

ISSUE: WON the decision of the president has become final and executory, thus barring the validity of the assailed resolution.

HELD: No. When the Office of the President issued the Order declaring the Decision of March 29, 1996 final and executory, as no one has seasonably filed a motion for reconsideration thereto, the said Office had lost its jurisdiction to re-open the case, more so modify its Decision. Having lost its jurisdiction, the Office of the President has no more authority to entertain the second motion for reconsideration filed by respondent DAR Secretary, which second motion became the basis of the assailed "Win-Win" Resolution. Thus, the act of the of the President in re-opening the case and substantially modifying its March 29, 1996 Decision which had already become final and executory, was in gross disregard of the rules and basic legal precept that accord finality to administrative determinations.

The Historical Juris Doctor Conferment of Mindanao State University College of Law

The Historical Juris Doctor Conferment

Alexander Diamla Dumpa

The Mindanao State University College of Law was the first in the country to confer the Juris Doctor degrees to its graduates following LEB Resolution No. 2019-406. And for this conferment, a very symbolic sablay was specially made.

The Legal Education Board (LEB), created by virtue of Republic Act (RA) 7662 otherwise known as the Legal Education Reform Act of 1993, unanimously approved and adopted on the 9^th of January 2019 the aforementioned issuance. Said issuance required all law schools in the country to shift their programs from Bachelor of Laws (LLB) to Juris Doctor (JD). It further resolved that the basic law degrees (whether LLB or JD) earned from law schools recognized or supervised by the LEB and its predecessor regulatory agencies shall be considered as equivalent to doctoral degrees in other non-law academic disciplines for purposes of appointment/employment, ranking and compensation.

The historic Juris Doctor Conferment Ceremony took place on the 6^th of March 2019, with the theme, “MSU Amidst Challenges: Producing Human Resource and Future Leaders in the Legal Profession”, which also coincided with the 38^th Foundation of the College of Law. Indeed, it was a day of total celebration. A day in recognition of the labor, excellence, and commitment of the MSU Law graduates in helping in making the law a pillar of an orderly and more just civil society. A time for celebrating success. And a time for renewing acquaintances and reminiscing the good old days.

With the company of 5 associate justices from the Court of Appeals Mindanao Station, the ceremony was graced by Justice Oscar V. Badelles, an associate justice of the Court of Appeals, as the guest of honor. During his speech, he emphasized how very relevant and timely is the vision of MSU College of Law in producing great lawyers. According to him, the ratification of the Bangsamoro Organic Law creating the Bangsamoro Autonomous Region in Muslim Mindanao, the Marawi Siege, and other challenges that befall our community, usher in a new era full of challenges and great possibilities for the MSU Law graduates to be catalysts of changes in the society.

For the conferment ceremony, a total of 2,040 alumni applied. Out of which, 1,459 alumni were in attendance and 581 alumni were in absentia. A special sablay was also used – the customized sablay with the Juris Doctor, langkit, and the MSU logo printed on it. It also donned the MSU school colors, and with three black strips to signify the doctoral degree equivalency of the Juris Doctor degree. According to Dean Atty. Alizedney M. Ditucalan, LLM, the JD sashes were even more memorable because they were made by the internally displaced persons (IDPs) of Marawi City, and thus this no less symbolizes resilience.

(This article has been published in the MSU Law Gazette, Vol. 3, No. 2, A.Y. 2018-2019).

The Constitutionality of PhiLSAT in Question

The Constitutionality of PhiLSAT in Question

Alexander Diamla Dumpa

The Philippine Law School Admission Test (PhiLSAT) is a standardized national qualifying examination administered by the Legal Educational Board (LEB) to measure the academic potential of a student seeking to study the law, and is generally imposed as a condition sine qua non in entering Philippine law schools on top of the entrance examinations administered by their chosen schools. However, in some schools like the University of the Philippines (UP) College of Law, the same can be waived.

First implemented in 1970, PhiLSAT was reintroduced in April 2017 following the creation of the LEB through Republic Act (RA) 7662, otherwise known as the Legal Education Reform Act. For the April 2017 PhiLSAT, a total of 6,575 from the 8,074 examinees passed, representing an 81.43% passing rate. Further, in the same year, law schools, in their discretion, were allowed to accept non-passers, provided that the former submit a justification to the Legal Education Board in accordance with LEB Memorandum No. 7.

In 2018, PhiLSAT became mandatory, which means that no student may be accepted into a law school if they did not pass the same. Further, law schools can still implement their own entrance examinations as a second screening for aspiring law students.

Two groups had filed separate petitions questioning RA 7662 and the LEB issuances imposing PhiLSAT – one group of lawyers, law professors, and students led by retired Makati Regional Trial Court Judge Oscar Pimentel, and another group of students from Visayas who either failed to pass PhiLSAT or failed to take it, before the high court in 2017 and 2018 respectively.

The non-legal grounds concerning practicality submitted by the petitioners and intervenors questioning the constitutionality of PhiLSAT, among others, were the following: (1) PhiLSAT hinders aspiring law students from enrolling in law schools because of the steep exam fee of P1,500 and the limited locations of testing centers; (2) it has low passing rates: the September 2017 PhiLSAT had a passing rate of only 57.76% while the April 2018 and September 2018 exams produced passing rates of 61.39% and 56.78%, respectively; (3) small law schools are also affected by the qualifying exam requirement because with fewer students, schools are either forced to increase tuition or close shop. On the other hand, their legal grounds raised issues, among others, on: (1) the academic freedom of academic institutions; (2) the right to know of the people; and (3) the separation of powers.

According to Justice Marvic Leonen, PhiLSAT might possibly be unconstitutional not because of the administering authority but because of violation of academic freedom, a position taken by amicus curiae (friend of the court) Dean Sedfrey Candelaria. Academic freedom pertains to the independence of an academic institution to determine for itself who may teach, what may be taught, how it shall teach, and who may be admitted to study. The same is provided under Article XIV of the 1987 Constitution:

Section 5. (2). Academic Freedom shall be enjoyed in all institutions of higher learning

Law schools, therefore, should be the one to administer their own qualifying exams as part of their constitutionally-guaranteed academic freedom, which includes the power to determine who may be admitted to study, and not by any other body. The state cannot prevent schools from admitting students on their discretion. Law schools have the right to admit even non-passers of PhiLSAT as they must not be homogenized to the point that all of them become Bar review centers rather than legal academics. Doing otherwise is already dictatorial. Besides, according to petitioners, what is the interest of the state in interfering with what is essentially a contract between a student and a school (in the case of private law schools) by imposing a qualifying exam?

It was even argued that “some want to study, not necessarily to become lawyers,” a sentiment also shared by Senior Associate Justice Antonio Carpio. It was contended that LEB cannot prevent a person from trying to get as much knowledge as he can. The State should not be able to filter out applicants to law schools because it violates people’s right to know, particularly those who just want to study law but do not necessarily want to become lawyers. Hence, PhiLSAT is violative of the right of the people to know as provided under Article XIV of the 1987 Constitution:

Section 5. (3). Every Citizen has a right to select a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements.

For want of scientific study to back up the claim that imposing a qualifying exam will help improve the quality of legal education, it was contended that PhiLSAT is unreasonable and therefore, LEB gravely abused its discretion in promulgating and administering the same. LEB chairperson Emerson Aquende admitted that they did not have any study but relied on the results of the Law School Admission Test (LSAT) in the United States of America.

As to the issue on separation of powers, petitioners argued that PhiLSAT encroaches upon the Supreme Court’s constitutional power to promulgate rules concerning admission to the practice of law because it imposed an additional requirement for the practice of law – a qualifying exam for law schools – and is administered by a body not answerable to the SC. The LEB being attached to the Commission on Higher Education (CHED) only for budgetary and administrative purposes and is independent from the SC. Article VIII of the Constitution states that the SC shall have the power, among others, over:

Section 5. (5). x x x admission to the practice of law, the integrated bar, and legal assistance to the underprivileged x x x

Hence, Admission to legal education is part of the practice of law and should thus solely be under the jurisdiction of the high court. Thus, any entrance examination for law school must be administered by the high tribunal and not by a body created by Congress. Congress cannot tell the SC how it is going to admit people to the Bar. Congress cannot create an administrative office or board that can exercise the power vested in the Supreme Court by the Constitution.

On the other hand, the Solicitor General in the person of Jose Calida, representing the LEB, said that admission to law schools is different from admission to the practice of law. Thus, the same does not violate the rule on separation of powers. Some justices also pointed out that the high tribunal had never regulated law schools in the past and only required that law graduates take up a minimum number of courses to qualify for the Bar Exams.

Civil Law Dean Nilo Divina expressed support for the LEB, saying that the office provided a more efficient admissions examination for aspiring law students. Not all law schools conduct their own admission test so that is the idea itself. It is the nationwide examination to determine who are fit to law schools.

Dean Ranhilio Aquino, on the other hand, believes that if one is to follow the belief that PhiLSAT curtails the people’s right to knowledge, the National Medical Admission Test (NMAT) – requirement for admission to Philippine medical schools, should be declared unconstitutional as well.

The researcher herein conducted an informal random survey, asking students from MSU College of Law regarding this matter. The result showed that 58.33% students were in favor of removing PhiLSAT as a condition sine qua non for admission to law school. According to some of them, the same is not an effective instrument in determining whether a student can survive law school and thus pass the BAR exam; it is not necessary since the exam itself is not actually related to what students should expect in the study of the law; it does not give equal opportunities to aspiring students; it is tedious; and finally, while indeed admission to the practice of law is a privilege, admission to the study of law is a right. On the other hand, 41.67% of the respondents said that PhiLSAT should be maintained. For some of them, it was claimed that PhiLSAT filters students who want to enter law schools; it is necessary to maintain the high standards of the study of law; it helps in raising the passing rates of law schools; and finally, it determines who are fit and it eliminates the unfit.

As of today, April 2019, pursuant to the Temporary Restraining Order issued by the Supreme Court in March 2019, admission requirements are to be determined by respective law schools while case is pending.

(This article has been published in the MSU Law Gazette, Vol. 3, No. 2, A.Y. 2018-2019).