Sunday, March 30, 2008

The 2008 PhBarExams Result

To the new lawyers I could have decided to spruce up this post with fireworks exploding in the heavens. I couldn't imagine a more fitting scenario for a celebration. However, considering the already graphically heavy page loading made me decide against it.

For those who did not make it. It would be well to note that the pursuit should be continued at all cost despite the setback. After all there's still more strikes left and the next try almost always increases the chance to near certaintyof passing. I hope that the time spent waiting was indulged in fine tuning the knowledge and honing one's own database to confirm one's given answers. Then the next try will surely be less of an effort. "Kung saan ka nadapa, 'dun ka bumangon."

It amuses me to find out at the PDI website that article which displayed the banner: " Regalado Record Still Unbroken." I believe that each bar exam is unique and different considering the broadness of its coverage. Inspite the fact that they cover same eight subjects.

I should therefore say that if Regalado were to take the Bar Exams at present, he would most proly flunk. Or as a consolation, maybe only pass Remedial Law. nyahaHAH!

Best of Luck Guys!

******click on post title for more info on the BarEx.

Tuesday, March 25, 2008

G.R. No. 180643 on Executive Privilege


The en banc decision of 9-6 is in itself telling of the matter. I am reminded of my professor in the college of law who said: "watch for the dissenting opinions, they tend to be the dominant stand and will sooner or later prevail.

Here are some substantial points I gathered as I went through the ponecia. I do admit that I was more absorbed in the dissenting opinion of the Chief Justice. Which is very methodical, forceful, and strong.

1. ..And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.
COMMENT: A confirmed act of bribery is not compelling enough?

2. relation to her executive and policy decision-making process and diplomatic secrets.

3. ...we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.

4. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
Comments: Due to the fact that The Senate is the only constitutional body that is elected broadly on a national level, it is closest to the Sovereign Collective Will of the people acting as an assembly. In contrast with that of the Lower House whose representative is elected by district one per 500k of the population. Besides, whatever grandstanding that may be maliciously attributed to an inquiry is very much overshadowed by the need for the people to know what is really happening in the corridors of power. After all it is the ordinary citizen who carry's the burden of paying taxes. It is not only a matter of transparency but also accountability.

5. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.
Comment: This is the justification of Sec. Ermita with regard to invoking the 'executive privilege'. just one question sir, what kind of diplomatic and economic relation with China are you trying to protect? I did not know that bribery is being protected by the government. Are you saying that it is the policy of China to bribe foreign governments and that the relationship is reciprocal? It is therefore safe to say and logical given the premises that it is the policy of the present government to accept and negotiate for bribes.However, policy is a matter of public interest. You see sir, you are caught up in your 'web of lies'.

6. Justice Reed, sitting on the U.S. Court of Claims, wrote: “The power must lie in the courts to determine Executive Privilege in litigation.... (T)he privilege for intra-departmental advice would very rarely have the importance of diplomacy or security”.

7. Thus, as early as 1807, the Burr case established the doctrine that the President's authority to withhold information is not absolute, the President is amenable to compulsory process, and the interests in secrecy must be weighed against the interests in disclosure.[83]

8. The administration of President Richard Nixon produced the most significant developments in executive privilege. Although his administration initially professed an “open” presidency in which information would flow freely from the executive to Congress to the public, executive privilege during this period was invoked not for the protection of national security interests, foreign policy decision-making or military secrets as in the past, but rather to keep under wraps politically damaging and personally embarrassing information.

9. The history of executive privilege shows that the privilege is strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the President’s constitutional mandate to execute the law, to uphold prudential separation of powers, and above all, to promote the public interest.

10. The ground involved in the case at bar, as stated in the letter of Secretary Ermita, is Presidential communications privilege on information that “might impair our diplomatic as well as economic relations with the People’s Republic of China.”

11. While the Court alluded to U.S. v. Nixon and made pronouncements with respect to Presidential communications, a closer examination of the facts of Almonte would reveal that the requested information did not refer to Presidential communications, but to alleged confidential government documents. Likewise, U.S. v. Nixon specifically confined its ruling to criminal proceedings, but Almonte was about a prosecutorial investigation involving public interests and constitutional values different from a criminal proceeding.

12. Such information, however, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the “exploratory” stage.

13. In this case, the Court again alluded to U.S. v. Nixon and also recognized that Presidential communications fall under the mantle of protection of executive privilege in the setting of a legislative inquiry. But since the issue for resolution was the constitutionality of EO No. 464 and not whether an actual Presidential communication was covered by the privilege, the Court did not have occasion to rule on the same.

14. “Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II (presidential) powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”[128] In this case, the Special Prosecutor seeking access to the tape recordings of conversations of the President argued that the U.S. Constitution does not provide for privilege as to the President’s communications corresponding to the privilege of Members of Congress under the Speech and Debate Clause. But the Nixon Court disposed of the argument, viz: “(T)he silence of the Constitution on this score is not dispositive. ‘The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it.’”

15. It is not to be used to personally benefit the person occupying the office. In In re Subpoena for Nixon[172] Chief Judge Sirica emphasized, viz: “… [P]rivacy, in and of itself, has no merit. Its importance and need of protection arise from ‘the paramount need for frank expression and discussion among the President and those consulted by him in the making of Presidential decisions.’”[173] In Kaiser Aluminum & Chemical Corp. v. United States,[174] in which the term “executive privilege” was first used, the U.S. Court of Claims emphasized that executive privilege is granted “for the benefit of the public, not of executives who may happen to then hold office.”

comments: This is the most glaring truth that beckons as a guiding light in the quest for truth and justice.

16. ...the clash of powers between the executive and the legislature must be resolved in a manner that will best allow each branch to perform its designed functions under the Constitution, using the “function impairment test.” In accord with this test, it is the Court’s task to balance whether the disclosure of the disputed information impairs the President’s ability to perform her constitutional duty to execute the laws more than non-disclosure would impair the respondent Senate Committees’ ability to perform their constitutional function to enact laws.

7. Finally, the following statement of Dorsen and Shattuck is instructive

x x x there should be no executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrong-doing by executive officials or presidential aides. There is obviously an overriding policy justification for this position, since the opposite view would permit criminal conspiracies at the seat of government to be shrouded by a veil of an advice privilege. While the risk of abusive congressional inquiry exists, as the McCarthy experience demonstrates, the requirement of “substantial evidence” of criminal wrong-doing should guard against improper use of the investigative power.

misc. comments:
raj: I was taken aback by the SC decision on the Neri case. The ponecia was very shallow and lame. However, I was appeased by the dissenting opinion of the Chief Justice which was very thorough, incisive, and enlightening.

If you try to place the two side-by-side with each other. You will find the other a 'shame'.

Thank you CJ Puno for your decision!
It seems to me that Executive Privilege may only be exercised in the absence of an irregularity or abuse. It cannot be invoked in the presence of a controversy. One, there is a need for a document that should be released to the public as a result of the executive-decision-making-process. In the presence of such an existing public document which binds the government in a contract, the process of coming into a decision may not be looked into. This is candor in communication and executive interaction. Herein lies a valid exercise of the privy. 'Nawala ba yung contract'?, all the more is there a need to demolish the invocation of the privy. Stinks of a cover-up! Rule on presumption of evidence: The person having possession of an evidence is presumed to be negatively affected if the evidence is disclosed or the non-disclosure of such an evidence by a person who is presumed to possess it by virtue of an office in the regular performance of a duty /responsibility/function may be held liable in the presence of an allegation of wrongdoing and will incriminate the person charged.

Again, it is exercised with a presumption of regularity of performance. That indeed, the President has decided in good faith and in the observance of the proper conduct in arriving at such a decision. While a questionable contract decided on should never be shielded by such a privy. Pure common sense.

The most perfidious way of harming a cause consists of defending it deliberately with faulty arguments.
Friedrich Nietzsche,

Wednesday, March 19, 2008

Que Barbaridad!


"Hell hath no fury like a woman (gay in this case..does it matter?) scorned"
Check the link
HERE while it's hot! Have some fun..


The blogging phenomenon flexes its muscle. A clear manifestation of unrestrained communication and interaction moderated only by a blogger's account owner. Gone are those days were information was dominated by the few who control channels of public information in a country that has been through hundreds of years of colonial influence and subservience.

These things could not have been made possible without the advances in technology and Internet revolution. It breaks through barriers and boundaries of jurisdictional questions. Questions which have yet to be settled in a world that is increasingly becoming 'a world without strangers'. Instant and spontaneous, it has become a place that generates new realizations which is only possible in our time and age.

On starting off, here is a quote on the Propaganda: Dictator's Three Friends.

One of the key things that any dictator knows is that in order to achieve absolute control, they need to have control of the military, the media and education.


The military and police offer the crudest and most absolute forms of control. When you can physically restrict people, locking them up or shooting them, then all dissidents will go in fear and very few will dare open their mouths.

Yet using military might is not a good solution. When coerced, you will get control of hands, but not hearts or minds. Rebellion is always in the air and the dictator will always go in fear of his or her life.


When you control the media, you can control the messages that are put in front of people day in and day out. If all that people see is a consistent message, then they will eventually come to believe it.

The internet has caused problems for dictators here, as has telephones and all other electronic forms of media that allow foreign ideas to worm their way into the system.


When you control the education system, you can instill values and beliefs from a very young age, particularly if you can move them from any contrary family environment into a consistent and controlled system.

The Jesuits are famous for starting with the very young, with the chilling declaration 'Give me the child and I will give you the man'. Values that are instilled when young may disappear for a while during teenage years, but almost always creep back again afterwards.


1. statute of frauds.
2. law of e-commerce.
3. rules on electronic evidence.
4. libel (good for int'l. exposure)..maybe realize how our laws suck?

Tuesday, March 18, 2008

WHT: Sourcing International Law

It is sometimes said that international law is not law because it doesn't behave in the same way as domestic law, lacks enforcement and is not derived from legislative or other usual law-making sources. This argument is ongoing but it has been accepted by most that international law does exist and is used every day. So, how can you find the sources of international law? It's not hard to do and is a key foundation to understanding international law well.


  1. Look to treaties first. Treaties are the main source of international law. Treaties can go by various names, such as international agreements, conventions, protocols etc. but they are in essence the same thing - a written international agreement concluded between two or more countries.
  2. Be careful to ensure that your country has signed and ratified the treaty in question before applying it to your domestic situation. Signature is only an indication of intent by a country to be bound to the treaty. Ratification is the point at which a country accepts its legal obligations under the treaty. Treaties only come into force when a specified number of countries have ratified it. Once in force, however, a treaty serves as a principal source of international law.
  3. Consider custom. Custom comes into play when a country follows a law or legal principle consistently and uniformly in its everyday conduct, so as to indicate "state practice" (conduct). When this occurs, it tells the rest of the international community that this country is acting as if the international law or principle binds it. While a very useful source of international law (treaties often build on the foundation stones of custom), it can be very hard to establish universal practice. The Law of the Sea is a good example of state practice that is established and some that is not considered established. In addition, be aware that there is one principle of customary international law that applies no matter what:
    • jus cogens - this refers to the rule that there are some laws that can never be violated. While there are few of these rules, the ones that do exist are very important ones, namely, the prohibitions on genocide, slavery and torture.

  4. Be aware of the concept of General Principles of Law. These are said to be legal principles that are common to the majority of the world's legal systems. Equity is considered to be one such principle. However, it is important to note that this source of international law is considered to be very much under debate and is frequently questioned. Be aware of it and its limitations.
  5. Read Article 38 of the Statute of the International Court of Justice. Here you will find what international lawyers call "subsidiary sources" of international law:[1]
    • Judicial decisions - although not a requirement to do so, international courts aim to follow the previous decisions of their own court and other international courts and tribunals. If they do follow precedent in this way, it may evidence growing acceptance of a principle or concept of international law.
    • Writings of publicists - merely influential in the case of the writer being "highly influential" in the relevant international field. Generally cited in international courts.

  6. Note that in the last example the "subsidiary sources" are not sources of international law in their own right but are influential in elucidating the content and interpretation of treaties and customary international law.
  7. Learn these sources well in conjunction with their limitations as sources. That way, you will be able to write a coherent and convincing defence of international law in an exam or article.


  • Countries may make reservations to treaties. This means that there are parts of a treaty to which they object or simply state they are unable to meet and that that part of the treaty does not apply to them. It's a little more complex than that, but this is the basic gist.


  • Be careful! Treaties only bind countries who have signed and ratified them. They do not usually apply to countries who are not a party to them.

Related wikiHows

Sources and Citations

  1. Brownlie, Ian, (1998) Principles of Public International Law, 5th edition, p 19, ISBN 0-19-876299-2

Article provided by wikiHow, a collaborative writing project to build the world's largest, highest quality how-to manual. Please edit this article and find author credits at the original wikiHow article on How to Find Sources of International Law. All content on wikiHow can be shared under a Creative Commons license.

wikiHowTo: Write A Law Essay


Law essays can be tricky to begin with, as they often require a great deal of research on an ever-changing and unfamiliar topic. Here are some tips to help you create a good law essay.


  1. Begin by reading the question carefully. Underline any keywords you notice.
  2. Read through your main textbook on this particular topic. Note any resources they have used in their writing (you can often do this by looking at the footnotes) and make a note of these. You can take notes on what you find relevant to your essay as you go along or you can just store the information in your head for now - different things work for different people!
  3. Work through your list of additional resources, doing the same as you did for your original textbook. This will probably result in a very long list. Make life easier on yourself and opt to read the most recent sources on your list first, as these will have the most up-to-date information. In addition, the most recent articles will also have discussed, argued for and against and reached conclusions on the listed prior articles listed, so this will ease your reading burden! From the most recent arguments, you should be able to deduce which are the most important older articles to follow up. You may also find articles you did not catch earlier that are gems of knowledge.
  4. Start writing your essay. Use a plan that helps you tease apart the different elements of the question, to ensure that you cover everything. Bring in new information that you haven't covered in the course or that isn't in the main textbook if possible. Definitely develop your own original thoughts as well, backing these up with precedents and other authors' discussions. Professors like to read essays that step out of the run-of-the-mill and display innovative thinking and initiative.
  5. Be broad in your thinking. Don't necessarily limit yourself to law. Think of related subjects such as politics, economics, psychology etc., that may have extra insights into the subject-matter on which you're writing that will give you a special angle that other students may not have considered (or are too disorganised to obtain!).
  6. Shorten it! Law essays tend to be long - too long, in fact, as many students often overshoot the word limit! Try to be as concise as possible (use "plain English" and not "legalese") and only use as many words on an argument as it needs. Write it once and then go through it with the red pen. This is actually much easier on a printed copy than on the screen, so print first and edit with brevity in mind. Remember, a good lawyer will make their points succinctly and will not need repetition to hammer a good point.
  7. Proof read through the essay before you print off the final copy.
  8. Submit your essay - on time, within word length and with all appropriate supporting documentation attached. If your professor expects a declaration of originality/no plagiarism, include this as well. Sometimes this is a nice touch even if it is not required as it shows that you care enough to write your own work.


  • Whilst proof reading, double check your references. Make sure your citations for journal articles and cases are correct according to the way your university or college expects the citation. A great way to double check is to type your reference into a legal database and see what comes up.
  • For legal journals, make sure you check your library's website to see if they have copies of that journal. There's nothing worse than going into the library on your day off only discover there's nothing you want there!
  • Make thorough use of electronic journals. Easier to obtain, easy to download and less to carry! They also allow for greater breadth of research.
  • You can prioritise your reading list even more by opting to read author's you are familar with first.


  • Make sure you read the instructions carefully. You don't want to write a wonderful essay but then lose marks because you went over the word count or used the wrong formatting.
  • If you are really stuck on the word count, you can move some of your argument into your footnotes. But be warned: lecturers are quickly growing wise to this practice and you could find your mark dropping if you rely on this method too often. In fact, some law departments have grown so wise to this practice that they now demand footnotes are included in the word count! Double check the instructions to make sure your law department is not one of these crafty few.

Related wikiHows

Article provided by wikiHow, a collaborative writing project to build the world's largest, highest quality how-to manual. Please edit this article and find author credits at the original wikiHow article on How to Write a Law Essay. All content on wikiHow can be shared under a Creative Commons license.