Publishing Jus Gentium:
Satisfying Procedural Due Process in the Application of International Law in Domestic Disputes
By John Kristoffer P. Pereda*
Laws must come out in the open in the clear light of the sun
instead of skulking in the shadows with their dark, deep secrets.
Mysterious pronouncements and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a valid publication
intended to make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint, parry or cut
unless the naked blade is drawn. [1]
I. INTRODUCTION
The idea of due process, in its present conception, is a product of a long and tedious evolutionary process. While it is said that as early as 1354, the majestic phrase “due process of law” already appeared in an English statute,[2] its precise meaning was subject to disagreement among several scholars.[3]
The concept of due process of law made its way to the Philippines when the Americans introduced the Anglo-American legal tenets in the Philippine legal regime. This is readily apparent from the Philippine Organic Act of 1902[4], which provides “that no law shall be enacted in [the Philippine Islands] which shall deprive any person of life, liberty, or property without due process of law…”[5] Since then, the subsequent versions of the fundamental law of the land, including the present one, have contained the same provision.[6]
Despite the constant presence of the due process clause in the previous versions of the Philippine Constitution, as well as the present one, its precise meaning has been elusive. In fact, the Court once pronounced that “there is no controlling and precise definition of due process,”[7] at least in this jurisdiction. Perhaps, that is because “[t]he requirements of due process are interpreted in … the Philippines as not denying to the law the capacity for progress and improvement.” Toward this effect and to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.[8] Thus, due process is dynamic and resilient; adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.[9]
Accordingly, despite the debate on the historical meaning of “due process of law,” compliance with both procedural and substantive due process is required in the Philippine jurisdiction.[10] As such, notwithstanding the malleability of its concept, there are fundamental facets of due process, developed by jurisprudence and shaped by the prevailing social forces and the ideals of democracy, that must be observed at all costs. A simple overlook of any of this facet, no matter how obscure, should be deemed as a violation of this sanctified right.
[1] Justice Isagani Cruz, Tañada v. Tuvera (Resolution), 146 SCRA 446 (1986).
[2] J. Scalia’s Concurring Opinion in Pacific Mutual Life ins. Co. v. Haslip, 499 U.S. 1 (1991).
[3] Keith Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of law, 19 AM. J. LEGAL HIST. 265 (1975).
[4] 32. Stat. 691
[5] Id., sec. 5
[6] PHILIPPINE AUTONOMY ACT, 39 Stat. 545, sec 3(a) (1916); CONST. (1935), art. III, sec. 1(1); CONST. (1943), art. VII, sec. 2; CONST. (1973), art. IV, sec. 1; CONST. art. III, sec. 1.
[7] Ermita-Malate Hotel and Motel Operators Association, Inc. v. The Honorable City Mayor of Manila, 20 SCRA 249 (1967).
[8] Secretary of Justice v. Lantion, 322 SCRA 160 (2000), citing Twining vs. New Jersey, 211 U.S. 78 (1908)
[9] ISAGANI A. CRUZ, CONSTITUTIONAL LAW 94-95 (1995 ed.)
[10] Provincial Bus Operators Association of the Philippines v. DOLE, G.R. No. 202275, July 17, 2018
* Staff: UST Law Review – Vol. 65 (2021); Third-year law student: UST Faculty of Civil Law; AB Political Science: University of Santo Tomas (2018).
