Speech delivered by Chief Justice Maria Lourdes P. A. Sereno during the International Scientific Congress on Private Law of the Philippines and Spain on June 13, 2016 at the Ateneo Law School, Makati City

Thank you, friends. Please take your seats. This is such a kind gesture on

your part. It was actually not necessary because this is not a Court session. (CJ

laughter) But among lawyers, it, unfortunately, “Your Excellency,” it remains a

tradition.

So as I was telling Fr. [José Ramon] Jett [T. Villarin, S. J., Ateneo de

Manila University’s 30th President] here, you are amongst lawyers and I could

see how he struggled with the fact. (Laughter) Magandang hapon po sa inyong

lahat. Buenas tardes. Good afternoon.

Please allow me to first congratulate all the supporters and participants

from Spain, led by his Spanish Majesty’s representative to the Philippines, His

Excellency Ambassador Luis Antonio Calvo Castaño, [Ambassador of Spain to

the Philippines,] with whom I had the pleasure of having dinner just recently.

Thank you.

And I welcome you of course and thank you that we are holding this

International Scientific Congress on Private Law of the Philippines and Spain.

Let me now acknowledge those of us who are here today that are very, very

important to both our societies. Of course, we have Fr. Jose Ramon Villarin of

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the Society of Jesus, the President of the University from which I came. In

1980, the “golden batch”, he was my classmate and my friend, together with

Dean [of the Ateneo De Manila University School of Law, Professor Sedfrey M.]

Candelaria, another Atenean; also Dean [of Ateneo School of Government]

Antonio Gabriel La Viña.

So as you can see, I keep on repeating that fact. I can never get tired of

saying that there was something special about that batch. Thank you, Father

Jett; Father [Jose M.] Cruz, Ateneo Vice President for University Global

Relations;

I see that, I hope that UP [University of the Philippines] has not

remained laggard on this area because Ateneo already has a Global University

Relations Office. And I don’t know. Is the Dean of UP here with us today? As a

fellow alumnus of that university, I want to find out whether we are allowing

ourselves again, (Laughter) again, to be beaten by Ateneo? That’s so bad.

(Laughter)

Justice [Adolfo S.] Azcuna, another very distinguished graduate of

Ateneo University, who happens not only to be a former Associate Justice of

the Supreme Court but also the present Chancellor of the Philippine Judicial

Academy;

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Justices Minerva Gonzaga-Reyes and Bernardo Pardo, the incumbent

and [the] immediate past Chairpersons of the Mandatory Continuing Legal

Education [Office] of the Supreme Court; Dean Sedfrey Candelaria, who is

simultaneously the Head for [Publication,] Research, and Linkages] of the

Philippine Judicial Academy;

Dean Juan José Hinojosa Torralvo of Malaga University [School of Law];

[former] Dean [of the Aquinas University School of Law] Emerson Aquende of

the Legal Education Board; Court Administrator [Jose] Midas [P.] Marquez;

[retired Court of Appeals] Justice [Delilah Vidallon-]Magtolis and [retired

Court of Appeals] Justice [Marina L.] Buzon, high officials of the Philippine

Judicial Academy;

Incumbent Justices of the Court of Appeals, led by no less than Justice

Magdangal de Leon, who, for a while, I thought of disowning because of his

very expressive rendition of “Besame Mucho.” (Laughter) But no, no, of

course. The love that the judiciary’s ranks have for you is quite solid; and of

course, our distinguished guests, professors and officials of Malaga University;

The professors and officials of Ateneo de Manila University Law School;

the deans of the various law schools and your professors; the judges who I see

is being led here by the President of the Philippine Judges Association, led by

[Caloocan City Regional Trial Court] Judge [Georgina D.] Hidalgo; and I hope I

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have not missed anyone important here because all of you are very important;

[retired Court of Appeals] Justice [Oswald D.] Agcaoili. But in case I just had

missed anyone in here, please, kindly indulge me for a while. I am not a very

young person anymore.

Well, I have to say I am very impressed that we are having this

Conference on Private International Law. It had actually been a dream of mine

for a long time for our two countries to start talking with each other.

Sometimes, I have felt, Ambassador, that after you signed the Treaty of

Paris whereby you, how much did you get? 20 million dollars? (Laughter)

After that, you seem to have suffered a period of forgetfulness. (Laughter).

And I, it is, somehow a bit sad that it had to take more than a hundred years

for me to believe that the warmth of traditions between your country and

mine, specially in the sphere of law, is going to be rekindled.

You know, even in my own private capacity, when I was a young law

professor, I had actually tried to find a way to jumpstart projects to

memorialize the work of our Professor Ruben Balane. Because in my mind,

you see I was his student and I always suffered terror under him so you can

put it on record that the present Chief Justice was so deftly afraid of Professor

Ruben Balane (Applause) because... (interrupted by louder applause.) Of

course, I consider him a legal genius. I consider his works, though not as

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many, to be of the same quality as with the works of Manresa and Sánchez

Román.

And I believe that because he has this special facility with European

languages, specially Spanish, he occupied a special place for us to try to

recreate that relationship once again. I thought but because of his uniqueness,

we could have a project with the Spanish government, and I had actually

personally spoken with several representatives of Spanish aid agencies before

when I was in the private sector. I tried to find out is there a way of trying to

build something from the fact that we have a Professor Ruben Balane who can

write very, very well not only in English but also in Spanish? So maybe it is a

hint that some of you who are quite generous can allow him a few years in

sunny Spain (laughter) because I think he really deserves it. If this is not a

strong endorsement, I don’t know what is. (laughter)

So, Mr. Ambassador, you have gone across the country, and you have

already impressed me with your commitment to human rights. But I also

would want to find out if you had been equally impressed to find out there are

still certain areas in our country that uses a native form of a Spanish-

Philippine dialect. In Chavacano [or Chabacano], you have in Cavite, and of

course in the Zamboanga peninsula from which our Justice Adolf Azcuna

famously comes from.

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But you see, Spain’s legacy lives not only in our law. Unfortunately, no

longer the currency of the legal language. But at least, in the substance of the

doctrines that are still embedded very strongly in our laws right now. And it is

particularly pronounced in the area of Civil Law.

So I come here bearing a message that we had actually needed a lot of

help a long, long time ago. In fact, in one of my earliest speeches before the

Philippine Judicial Academy, I had impressed on the audience my lament that

the legal academia had not given enough attention to looking at two major

Codes coming from Spain that needed updating. I’m speaking about the 1932

Revised Penal Code, which comes also largely from the Spanish Penal Code at

the time, as well as the Philippine Civil Code in 1950, which is a mixture, of

course, mainly of Spanish laws, but also of continental, European law. You had

both provisions originating not only from Spain, of course, but also from

France, Germany, and even from some of the South American countries.

And I thought 1932 and 2014 when I delivered that talk, that is quite a

long time for us not to be examining our soul as a nation and resolving the

contradictions that arises from the fact that we have not given enough

attention to these great bodies of law.

When I was just a student in 1984, I wrote an article trying to examine

and have a comparative analysis of indigenous Philippine law as against the

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national land law of the Philippines, which is patterned after the American

system, which is interpatterned after the Australian system. So I thought that

precisely because of the difference in the assumptions of the Torrens [Title]

System, where you divide the world according to straight grids, where you

had great planes so you could draw straight lines.

The Philippines being an archipelago with more than 7,000 islands, the

boundaries are more natural: waters coursing through lands, so those are our

boundaries; the slope of mountains and the peak of mountains, those would

be our natural boundaries. And in the indigenous peoples’ conception, these

are where you demarcate rights, whether they are of communal character or

of individual character. And I realized that side by side with the individual

concept, that the individual concept of property ownership is only very

limited and the more dominant form of ownership was really a community-

based system, of the community owning a piece of property for the

development of their joint need.

So there is a need for us to examine our laws because part of the

problems we are having right now, the problem of injustice, the problem of

the inability of the Filipino masses to articulate their deepest needs arises

from the fact that that we have absorbed a system of laws that were foreign to

us: first from the Spaniards and then from the Americans. But it was only in

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the 1980s that there started to be work of scholarship in the area of

indigenous law by many people.

So what do you have? If it were a clinical case you would consider it as

schizophrenia, right? So a person that is being given a set of reality that is not

in accord with his or her organic state. So if we are in a state of legal

schizophrenia, the remedy should have been first an analysis of the conditions

which perpetuate the problem we have of self-identification and that is why

the problem of justice keeps on repeating itself because people are not able to

relate to the precepts of property, to the precepts of contracts, to the

relationships that are required in commercial contracts which contrast with

the very intimate and personal way by which Asians, and specially Filipinos,

relate to each other.

That is why, Mr. Ambassador, I urge you to give this a very preferential

attention because if we are going to really be great as a nation, we have first to

recover our soul. And we cannot do that unless we are able to articulate who

we are as a people; unless we are able to express what we really want as a

nation, as a community of individuals with families who are not only

expressing physical and psychological needs but the higher aspirations as a

nation.

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So I believe that the fact that your legacy lives, perhaps you can tell us

which of these legacies still resonate with the universal values that are right

now being pronounced in many international instruments, and which are

actually culture-specific and should have been just relegated to continental

Europe and should not have been transported to us. And at the same time, do

you have similar experiences with countries who had a mixture of traditions

both from the continental Europe and from the common law countries?

Because as you very well know by now, ours is a mixed tradition. While we

call ourselves a civil law countr[y] in the sense that judgment law becomes a

law only when they are fully in accord with statutory, of course Constitutional,

definitions. We are more careful to observe boundaries than common law

countries whose judiciaries have the first job of first defining what the law is.

On the other hand, of course, in our tradition, it is the Legislature’s first

duty to define what the law is and then we the Courts will define what the

Legislature intended. I am sure that in your modernization program, from the

1950s up to now, you had tried to update, for example, your Civil Code to

conform to modern commercial conventions.

For example, sales conventions, transportation conventions, security

interest conventions are already of international nature in many countries, yet

our Legislature still has to give even the slightest attention to these needs of

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modernization of our legislation. The danger that we face and one problem I

don’t want us to enter again is we will try to say we will modernize our

commercial law by adopting wholesale the model of another country while

forgetting that our Civil Code is still largely Spanish-based.

Let me give you an example because in my past life, I was also a

professor of Civil Law and some of the deans here were my former students.

So you start with Persons and Family Relations and this has already evolved in

a great way under the present Family Code right now and we have tried to

update these laws according to what we believe our society needs. That was

the easy part. The harder part was really going to the construct obligations,

specially when you take into consideration that they are not just bilateral

obligations right now but a greater number of contracts now, the larger

contracts, have multi-party participants. So what do you do in such a

situation? We often have the problem of legal characterization of divisible

obligations vis-à-vis obligations that have to be performed in stages. The

commercial world would definitely have a way of defining the financial risks.

So my guess is, without benefit of studying what you have been doing, you

would have already, by now, made the arbitration financial risks the legal

standard for apportioning liability.

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In other words, if parties to a contract have already defined the financial

risks are [to be] divided in this way, then that will largely govern the way by

which you attribute responsibility. But the problem seems that we are in a

time freeze. We still are enamored with the concept of indivisible obligations

when obligations right now, specially in major commercial contracts, require

so many parties to be exposed to simultaneous risks that are dependent on

the performance of other people. There is a need, in other words, to put a

matrix or a framework of analysis for our present Civil Code. With all humility,

I think it is not enough for just to tell each other the state of our laws. That is

the simple of course the start. But the greater need is how to intervene in a

way where the confusion in jurisprudence will be relieved in a way, at the

same time, that we can translate, especially to small Filipino businesses. The

implications of entering into a written form of agreement which is alien to

them. So even assuming that we go through a modernization program, the

greater problem or task is actually how to educate our people to have a more

modern outlook where contracts are entered into and the impersonal aspects

of the written contract are respected, something that is alien to the very

personalistic way by which many Filipino entities conduct their work. We are

still very much Asian after all and as you can see, by the romantic

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presentations which preceded the work the Chief Justice in the lyrics lecture

which are very much romantic at heart.

I thought actually Dean Candelaria I would struggle that I wanted to

relax after that sumptuous offering of aesthetics, but now I think that the work

that I have basically right now is to tell you about the enormity of the

problems that we have: a problem that was created by our failure to examine

ourselves as a people for the longest time and to draw from the resources that

are actually out there that could have been pulled in from our friends across

the seas. Primarily, of course, the Americans have been helping in a large way

of the commercialization of our commercial laws, but you see even our

Congress needs to understand that modern economic transactions now need

really urgent attention and somehow that attention is not being given. And we

keep on entering into agreements, agreements such as those that Ambassador

[Manuel A. J.] Teehankee [formerly the Philippine Representative to the World

Trade Organization in Geneva, 2004-2011] used to be entering into when he

was (laughter) and I think only he know what he signed when he was in

Geneva. I think the greater mass of people I think never had the opportunity to

know what he was doing. I’m sorry. (CJ laughter) He’s my friend. Okay.

So if this is a time when our international engagement must be broader

and deeper, this is also the time when I think the legal community must

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understand that we have enormous questions that we must face in the area of

private international law. For example, the meetings of ASEAN Chief Justices,

the 10 of us agreed that we are going to request the ASEAN to recognize us as

a Council of ASEAN Chief Justices. And because of our frequent meetings, we

are now going to be talking about cross-boundary issues. And the most

pressing of these is cross-border child custody issues.

And in order to do that, you have to understand not only the basics of

the family law of the two jurisdictions, you also have to understand civil

procedure. And you have to understand the international norms governing

interests of the child and who has the preference with respect to jurisdiction

to hear child custody disputes.

But you see, the Filipinos are romantic at heart and he who is

underprivileged in the economic comparison should have more sympathy. So

what do we do considering that we have more than 10 million Filipinos

outside in the country who are as emotionally connected to us as anyone who

is residing here is?

I had thought that I would tell you what I have always felt these years

which is that in order for the Philippines to make use of the fact that it has

benefitted from two great traditions, Spanish tradition and American tradition

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— legal traditions. You, I think, could consider it as a continuation and a

recognition of the tradition that you imparted to us to help us rise above our

problems of confusion, lack of identification, [and] lack of characterization, by

allowing us to see tools, measures, [and] analytical concepts that you have

used to help transform economies into the modern age.

I think you are in the best tradition because you came from a history of

colonization of countries in South America and in Asia of the Philippines. I

think you can tell us of what the problems those countries encountered, your

former colonies encountered; and if you had re-orientation with them on how

then could modernize the laws they inherited from you, you could help us in

that area. And I think that we can bring the best also in the Filipino legal mind

by informing the world of our love of justice, our love of democracy, our love

of human rights, and our ability to pick up those Western concepts, such as

democracy and human rights, and bring in uniquely Asian values — Asian

values that focus on the community more than the individual. So what I’m

offering is a proposition that will be mutually beneficial.

So with this, I think I have left the academe long time ago. I miss the

academe, but I am now engaged into the day to day resolution of real-life

disputes of life, [of] people. And I would want the judiciary to be able to say in

the future that, aided by legal academia, we can draw on the suggestions that

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our very learned professors are espousing: on how we can reconcile areas of

conflicts of law that have bedeviled us all these years. My duty is to inform the

people that justice can be felt by them, not only real time, but in a real way, in

a way that affects their hearts and convinces their minds. Thank you very

much. (Applause)