Saturday, February 6, 2016

Arbitrary detention and violation of right to asylum of Wikileaks founder Julian Assange

Download the full Opinion of the UN OHCHR Working Group on Arbitrary Detention re violation of the right to asylum and the right against arbitrary detention of Wikileaks founder Julian Assange. 

Advance Unedited Version 
Distr.: General
22 January 2016
Original: English 
UN Human Rights Council
Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary Detention at its seventy-fourth session, 30 November – 4 December 2015

Opinion No. 54/2015 concerning JulianAssange (Sweden and the United Kingdom of Great Britain and Northern Ireland).

Friday, February 5, 2016

When couple is married both under Civil Code and under PD 1083 (Code of Muslim Personal Laws), RTC has concurrent jurisdiction w/ Shari'a Court. - Tamano vs Ortiz, GR 126603, June 29, 1998

"x x x.

As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil Code. Hence, contrary to the position of petitioner, the Civil Code is applicable in the instant case. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws, the same would still fall under the general original jurisdiction of the Regional Trial Courts.

Article 13 of PD No. 1083 does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the sharia courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Consequently, the Regional Trial Courts are not divested of their general original jurisdiction under Sec. 19, par. (6) of BP Blg. 129 which provides -

Sec. 19. Jurisdiction in Civil Cases. - Regional Trial Courts shall exercise exclusive original jurisdiction: x x x (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions x x x x."

x x x."

"Acting under an impulse of uncontrollable fear" is not a mitigating circumstance but an exempting circumstance. - GR 215424.pdf

"x x x.

To begin with, "acting under an impulse of uncontrollable fear" is not among the mitigating circumstances enumerated in Article 13 of the RPC, but is an exempting circumstance provided under Article 12 ( 6) of the same Code. Moreover, for such a circumstance to be appreciated in favor of an accused, the following elements must concur: (a) the existence of an uncontrollable fear; ( b) that the fear must be real and imminent; and ( c) the fear of an injury is greater than, or at least equal to, that committed.29 For such defense to prosper, the duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a wellgrounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough.30 

In the instant case, while the records show that Manansala was apprehensive in committing a falsity in the preparation of the subject report as she did not know the repercussions of her actions,31 nothing would show that Lacanilao, or any of her superiors at UMC for that matter, threatened her with loss of employment should she fail to do so. As there was an absence of any real and imminent threat, intimidation, or coercion that would have compelled Manansala to do what she did, such a circumstance cannot be appreciated in her favor. 

x x x."

Malversation of public funds - GR 211543.pdf

"x x x.

Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property. 29 For a prosecution of the crime to prosper, concurrence of the following elements must be satisfactorily proved: (a) the offender is a public officer, (b) he has custody or control of the funds or property by reason of the duties of his office, ( c) the funds or property are public funds or property for which he is accountable, and, most importantly, (d) he has appropriated, taken, misappropriated or consented, or, through abandonment or negligence, permitted another person to take them.  Article 217 of the Revised Penal Code pertinently provides as follows: x x x."

ARTICLE 217. Malversation of public funds or property - Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: xx xx 4. 

The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. 

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. 

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses.

x x x."

Bouncing check law Bp Blg. 22; place where check was deposited is also a proper venue to sue. - GR 198270.pdf

"x x x.

"Guided by the foregoing pronouncements, there is no denying, therefore, that the court of the place where the check was deposited or presented for encashment can be vested with jurisdiction to try cases involving violations of BP 22. Thus, the fact that the check subject of the instant case was drawn, issued, and delivered in Pampanga does not strip off the Makati MeTC of its jurisdiction over the instant case for it is undisputed that the subject. check was deposited and presented for encashment at the Makati Branch of Equitable PClBank. The MeTC of Makati, therefore, coffectly took cognizance of the instant case and rendered its decision in the proper exercise of its jurisdiction." 

x x x."

Rule 65 petition for certiorari questioning the regularity of preliminary investigation becomes moot after the trial court completes its determination of probable cause and issues a warrant of arrest.

See - 209330.pdf

"x x x.

The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter that may cause a probable miscarriage of justice in the conduct of a preliminary investigation. This action may include, but is not limited to, the conduct of a reinvestigation

Furthermore, a petition for certiorari under Rule 65 questioning the regularity of preliminary investigation becomes moot after the trial court completes its determination of probable cause and issues a warrant of arrest.

x x x."

Muslim-Christian couple’s divorce upheld | Inquirer News

"x x x.

Divorce is possible in the Philippines, after all.

In a unanimous ruling, the Supreme Court has upheld the divorce of a Muslim man and a Roman Catholic woman over “irreconcilable religious differences,” affirming the practice called talaq, or divorce, under the Code of Muslim Personal Laws of the Philippines, which is based on the Sharia, or Islamic law.

The decision, written by Associate Justice Jose Mendoza and concurred in by the entire court, “maintained” the divorce of John Maliga and Sheryl Mendez, which was granted by the Cotabato City 1st Sharia Circuit Court (ShCC) on Aug. 19, 2011, on Maliga’s request because of conflict in religious views and practices.

The Supreme Court also upheld the ShCC order for Maliga to give Mendez P24,000 as a “consolatory gift” or mut’a, also a practice under the Muslim Code.

The high court then remanded to the ShCC proceedings for the custody of the now divorced couple’s daughter, saying the mother had been deprived of due process.

Maliga and Mendez were married in Muslim rites in April 2008, with Mendez agreeing to convert to Islam.

Presidential Decree No. 1083, or the Code of Muslim Personal Laws of the Philippines, allows divorce as “the formal dissolution of the marriage bond … to be granted only after the exhaustion of all possible means of reconciliation between the spouses.”

Reasons for divorce

The Muslim Code allows different forms of cutting marital ties, including situations where the man may seek “perpetual divorce” from his wife when the wife commits adultery (divorce by li’an), or if a wife seeks release from marriage when the husband commits “unusual cruelty,” suffers from insanity or affliction of incurable disease, or neglects family support for six consecutive months, among other conditions (divorce by faskh).

In the case of Maliga and Mendez, Maliga sought a divorce by talaq, a separation that “may be effected by the husband in a single repudiation of his wife” after totally abstaining from sexual relations with her.

Muslim marriage in the Philippines falls under the Muslim Code and not the Family Code, which does not recognize divorce.

Marriage in the Philippines may be nullified under the law in a process that voids the union from the beginning, as if husband and wife were never married. A divorce terminates the marriage but recognizes the years the couple were together.

Many marital separations in the country invoke Article 36 of the Family Code, where one party alleges that the other is “psychologically incapacitated to comply with the essential obligations of marriage” as a ground to dissolve a union.

Proving such incapacity against the other party would void the marriage.

Void from the beginning

Marriage may also be declared void from the beginning due to technical and legal flaws, including if one party is below legal age, or if the couple married without a license, or if the marriage is bigamous or polygamous.

The Family Code also provides for legal separation in case one party commits domestic abuse, addiction to vices, sexual infidelity and criminal conviction among other grounds. But this process does not terminate a marriage and parties are not allowed to remarry.

There have been several attempts to legalize divorce in the Philippines, but none has prospered.

Maliga married Mendez in April 2008 under Muslim law, when they already had a child.

At the time, Maliga already had “several wives” and three children, according to court records.

Mendez agreed to convert to Islam. But their relationship turned “sour” shortly after, according to the court, with Maliga seeking a divorce because Mendez reverted to Christianity just eight months after their marriage.

Maliga also filed for custody of their daughter.

No changes

The court said Maliga “claimed he started to doubt the sincerity of his wife’s submission to Islam, having noticed no changes in her moral attitude and social lifestyle despite his guidance.”

He sought custody of his daughter after learning that Mendez, who returned to Manila just months after their wedding, had enrolled the child in a Catholic school.

The court said Maliga felt her daughter was placed in an environment where she faced “religious growth and values repugnant to Islam.”

In granting Maliga’s repudiation of his wife, the ShCC also granted his urgent motion to take custody of his daughter “because of social, financial and religious standing.”

The local court also noted that he had “raised a good Muslim daughter as evidenced by her appearance,” and said the couple were married in Muslim rites in the first place.

The differences came to a point that Mendez filed a kidnapping complaint against her estranged husband in the National Bureau of Investigation.

The ShCC ruling, which was later upheld by the Sharia District Court (ShDC), did not sit well with the Supreme Court. It ruled that the ShCC deprived Mendez of due process and did not even give her a notice of hearing.

The court said the ShCC was “remiss in its duty to state the precise factual and legal basis on which its ruling awarding custody to Maliga was based.”

“The award of custody to Maliga by the ShCC was void, as it was rendered in violation of the constitutional right of Mendez to due process,” the court said in the ruling dated Jan. 12 but released just this week.

“Not only was the award of custody violative of the constitutional right of Mendez to due process, but also both the orders of the ShCC and the ShDC awarding custody of (the daughter) to Maliga were without evidentiary basis because no hearing was actually conducted. There was no explanation given as to why the motion was resolved without notice,” the court said.

x x x."

Chief Justice Sereno’s ‘filibuster’ A contrast in style | The Manila Times Online

"x x x.

Chief Justice Sereno’s ‘filibuster’ A contrast in style

February 4, 2016 11:09 pm

Commissioner Arthur Lim was urbane, delightful and pleasantly instructive as he defended the Commission on Elections en banc decision disqualifying Sen. Grace Poe Llamanzares, and cancelling her Certificate of Candidacy as a presidential candidate, in last Tuesday’s Oral Arguments before the Supreme Court. Chief Justice Maria Lourdes Sereno on the other hand came a bit too strong as she pleaded for a “rereading” of the Constitution to grant foundlings of unknown parentage the status of “natural-born citizens” for the benefit of Mrs. Llamanzares. It was a high moment for Lim, but regrettably a low moment for the lady chief justice.
In his seven-minute opening statement, Lim said that over and above its political undertones, the Llamanzares case is firstly, and ultimately, constitutional and legal, and should be resolved as such.
He warned against the danger of allowing a constitutionally ineligible presidential candidate to run and get elected first, before her constitutional eligibility is passed upon by the Presidential Electoral Tribunal, as argued by Mrs. Llamanzares. Although the PET, which is made up of the entire Supreme Court, has the constitutional authority to unseat an “elected” president, it is doubtful, said Lim, that a newly elected President would allow himself to be subjected to a quo warranto proceeding at the PET. Would another EDSA be the result? he asked.
Sereno failed to rise to the same level. Her only concern was: What would happen to all the foundlings–officially reported at 4,000 or so, to date–if Mrs. Llamanzares, who came into the world as one, is not allowed to run for President, just because she is not a natural-born citizen, as required by the Constitution? Quoting some unnamed friends in some unknown circle, she said that not allowing Mrs. Llamanzares to run because of her constitutional ineligibility would “reverberate around the world.” Lim’s fear, which many share, is the exact opposite: allowing her to run despite her constitutional ineligibility would completely destroy the constitutional order and the rule of law, and possibly justify, and demand, a revolution.
A ‘filibuster’
Sereno spent nearly all of two hours trying to make her audience’s hearts bleed for the poor foundling who could not run for President. It began to look like a “filibuster,” except that it had nothing similar to the famous 1963 Senate filibuster of Sen. Roseller Lim, or Khrisna Menon’s even more famous performance at the UN Security Council in defense of India’s position on Kashmir. She went through a long list of countries which have recognized foundlings as citizens, and an equally long list of government positions to which non natural-born Filipino citizens (not just foundlings) may not be named. The only thing lacking was a large receptacle to collect all the tears that Sereno may have expected to come flooding down the courtroom in response to her argumentum ad misericordiam.
She even went to the extent of repeating a citation from the proceedings of the 1934 Constitution Convention, which had already been shown to be irrelevant and false in a previous session. This refers to an exchange among delegates Manuel Roxas, Nicolas Raffols and Ruperto Montinola on Raffols’s idea that foundlings should be considered citizens. Llamanzares’s counsel Alexander Poblador had earlier tried to milk this in support of his claim that foundlings are natural-born citizens, only to be shown by Senior Associate Justice Antonio Cardio that the idea was actually voted down by the Convention.
Then and now
This was the second time I have seen Sereno in court struggling to dodge the obvious truth related to the Constitution. In the 2013 Oral Arguments on the Reproductive Health Law, where I gave the opening statement on behalf of the petitioners, Sereno’s concern was how could the Supreme Court, a non-elected branch of government, invalidate an act of the two elected branches, the Legislative and the Executive?
The issue there was simple enough: the Constitution designates the State as the primary protector of the life of the unborn, and therefore of conception; it cannot therefore be source of contraception and the preventer of conception. We lost that case when the Justices declared that the law was “not unconstitutional” while violating its fundamental provision declaring the State as the primary protector of the unborn.
In the case at bar, Sereno’s concern seems to be how to transform a foundling with no known parentage into a natural-born citizen, by rewriting the letter and spirit of the Constitution. In the first instance, she seemed full of doubt that the Constitution empowered the Court to declare an act of the Executive and Congress unconstitutional; in the present instance, she seems more than eager to rewrite the Constitution on behalf of one foundling.
Sympathetic, but—
She tried to persuade Lim to agree, but all Lim could say was that while he shared her feelings for the foundlings, the Constitution must be followed as the highest law of the land, and that any need to amend the law should be done by remedial legislation. She went back to him several times. For a while, I thought I was listening to some gender feminists pleading for the “right of women” to become priests, and calling upon the Vatican to allow their ordination; and the Vatican saying that not even the Pope can authorize such innovation.
As chief guardian of the Constitution, Sereno should be the first one to know that the Constitution cannot allow even the highest Court to interpret any of its provisions against its letter and spirit. Judicial activism occurs, but even that has its limits; otherwise despotism runs riot. Unhappily, the Chief Justice appears to have fallen into a fallacy concerning foundlings. She appears to believe she is fighting for all foundlings when she is simply expending all her energies on only one foundling, Mrs. Llamanzares.
So many others barred
What is clear to all though is that so many others who are not even foundlings are barred from running for President. These include all naturalized Filipinos; all natural-born citizens who are not registered voters; who are unable to read and write; who are less than 40 years of age; who have not been living in the country for at least ten years prior to this May 9 election; and all who, while complying with the constitutional qualifications for the office, do not have the money and political organization of Mrs. Llamanzares and have been declared “nuisance candidates” motu proprio by the Comelec.

Yet there is not a single soul or heart bleeding for them.

Carpio and Brion
It took but a short intervention on the part of Justices Carpio and Arturo Brion to brush aside the veil of sophistry and confusion that temporarily shrouded the Court during the “filibuster.” Through Carpio, it became very clear that all the countries that have accorded citizenship to foundlings have done so through legislation; and that aside from those who are required under the Constitution to be natural-born citizens in order to qualify for official positions, all the rest which Sereno had read into the record are merely required by statute to be natural-born. This requirement can be undone by legislation.
In Mrs. Llamanzares’s case, only a DNA match showing her having been born of a Filipino father can undo her situation, although even that may be too late to have any immediate effect on her disqualification. She is not a Filipino citizen under the 1935 Constitution, which was in force in 1968 when she was born. And she cannot, by the wildest stretch of the imagination, qualify as a “natural-born citizen” under the 1987 Constitution, which defines the term as “a citizen of the Philippines from birth without having to perform any act to acquire or perfect (her) citizenship.”
From birth onward
Carpio made it abundantly clear that to be “natural-born” one must be a citizen not only “at birth” but rather “from birth” and continuously thereafter, without having to perform any act to acquire or perfect one’s citizenship. In Mrs. Llamanzares’s case, her citizenship at birth and from birth is unknown. Her first known and uncontested citizenship was as a naturalized American in 2001, when she was already 33 years old; it was also her last known and uncontested citizenship, when she renounced it very much later.
But even her supposedly reacquired Philippine citizenship remains clouded by questions of regularity. How could she possibly reacquire a citizenship she never had? Did she not get her Bureau of Immigration papers because she misrepresented herself as a “former natural-born citizen”?
Abuse of discretion?
Through Brion, it became emphatically clear, on the third SC hearing, that the Comelec ruling disqualifying Mrs. Llamanzares and cancelling her COC as a presidential candidate is otherwise final and non-reviewable, but for the fact that the High Court has temporarily restrained its implementation on an allegation of grave abuse of discretion, amounting to excess or lack of jurisdiction. So did the Comelec commit a grave abuse of discretion? Did it act outside of its jurisdiction? Did it commit errors because of hostility to the affected party or a whimsical exercise of judgment?
Unless these questions can be answered in the affirmative, it would be an empty and foolish pursuit to try to read the Constitution in any way other than the spirit and letter of the law intended it to be read. It appears the Chief Justice was temporarily distracted by what happened in court earlier such that when she adjourned the session she failed to mention the date and time it would resume. It is safe to assume it would resume next week, to allow the Court to decide soon. In the end, the Constitution must stand, and all efforts to obfuscate, befuddle or rewrite it must fall.
Author -
x x x."

Thursday, February 4, 2016

The Effect of Acquittal In A Criminal Case On Its Corresponding Civil Liability | Prohealthlaw

"x x x.


Must the award of damage be retained despite the acquittal of the accused in the criminal case?


The award of damages must be removed. Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the actor omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission. There being no delict, civil liability ex delictois out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule III of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the civil action for damages is "for the same act or omission.

A reading of the CA decision would show that respondent was acquitted because the prosecution failed to prove his guilt beyond reasonable doubt. Said the CA:

The evidence for the prosecution being insufficient to prove beyond reasonable doubt that the crime as charged had been committed by appellant, the general presumption, "that a person is innocent of the crime or wrong, stands in his favor. The prosecution failed to prove that all the elements of estafa are present in this case as would overcome the presumption of innocence in favor of appellant. For in fact, the prosecution's primary witness herself could not even establish clearly and precisely how appellant committed the alleged fraud. She failed to convince us that she was deceived through misrepresentations and/or insidious actions, in venturing into a remittance business. Quite the contrary, the obtaining circumstance in this case indicate the weakness of her submissions.

Thus, since the acquittal is based on reasonable doubt, respondent is not exempt from civil liability which may be proved by preponderance of evidence only. In Encinas v. National Bookstore, Inc., the higher court explained the concept of preponderance of evidence as follows:

x x x Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.

However, in this case, no such civil liability is proved even by preponderance of evidence.

In discrediting petitioner’s allegation that she gave respondent US$100,000.00 in May 2002, the CA found that: (1) petitioner failed to show how she was able to raise the money in such a short period of time and even gave conflicting versions on the source of the same; (2) petitioner failed to require respondent to sign a receipt so she could have a record of the transaction and offered no plausible reason why the money was allegedly hand-carried to Hong Kong; (3) petitioner’s claim of trust as reason for not requiring respondent to sign a receipt was inconsistent with the way she conducted her previous transactions with him; and (4) petitioner’s behavior after the alleged fraud perpetrated against her was inconsistent with the actuation of someone who had been swindled.

The petition for the award of damages is denied.

GR. No. 191240, July 30, 2014
CRISTINA B. CASTILLO, Petitioner, vs. PHILLIP R. SALVADOR, Respondent.

x x x."

Challenge to the new SC justice Caguioa - Inquirer Opinion

"x x x.

Challenge to the new SC justice

February 4th, 2016 12:22 AM

To fill the vacancy in the Supreme Court created by the retirement of Associate Justice Martin Villarama Jr., President Aquino named former justice secretary Benjamin Caguioa to the high court before the election ban on appointments takes effect.

Caguioa’s appointment was made three months after he was named justice secretary in place of Leila de Lima, who resigned to run for senator in the May elections. He served as chief presidential legal counsel from 2013 to 2015.

Caguioa is the President’s sixth appointee to the high court. The five others are Chief Justice Maria Lourdes Sereno and Justices Bienvenido Reyes, Estela Perlas-Bernabe, Marvic Leonen and Francis Jardeleza.

Although Caguioa has impressive academic and professional credentials that qualify him for a seat in the high court, it cannot be denied that his personal ties with Mr. Aquino played a significant role in his appointment. They were classmates from grade school to college at the Ateneo de Manila. Lengthy school companionship often builds close relationships that remain strong even after graduation.

These ties are comparable to those that bind members of a fraternity who joined at the same time, or graduates of the same class of a military academy. In relationships of this nature, the people involved are expected, if not morally obliged, to cover each other’s back when the circumstances warrant it.

Caguioa’s appointment may be likened to that of Renato Corona who, prior to his appointment as chief justice by then President Gloria Macapagal-Arroyo, was her chief of staff when she was vice president. Corona was perceived as Arroyo’s fair-haired boy. This impression was strengthened when she named him chief justice over Justice Antonio Carpio, who was his senior in terms of length of service in the high court, and, worse, when the election ban on appointments was in effect.

Although Corona’s appointment was later declared valid by the majority of his colleagues, the decision was widely criticized in legal circles as a convoluted and strained interpretation of the Constitution. His stint as chief justice was cut short when, with MalacaƱang’s blessings, he was impeached and later convicted by the Senate impeachment court.

To a public that perceives our judicial system as biased in favor of the rich and powerful, the close relationship between the judge or justice and the appointing power often raises concerns about the appointee’s sense of fairness and objectivity.

The cultural trait of utang na loob (debt of gratitude) remains strong in our society. Favors given are expected to be reciprocated without being asked, and more so when asked, if the opportunity presents itself. Refusal or failure to repay a debt of gratitude that can be safely done, or can otherwise be justified by some stretch of reasoning, is deemed an act of ingratitude.

This early, some critics of the Aquino administration have made public their plan to sue the President for alleged violations of the Constitution when his term ends on June 30. These suits or complaints will invariably find their way to the high court for final resolution. Leave it to the Filipino lawyer to be able to come up with the legal mumbo jumbo to make that happen.

In this situation, the action of the Aquino appointees in the high court will be closely watched by the public. Will they be protective of or give the benefit of the doubt to the person who appointed them? Will utang na loob be a factor in their decision-making process?

Caguioa will be more closely watched than Mr. Aquino’s other appointees because of his close association to him.

It will be recalled that during the deliberations of the Judicial and Bar Council (JBC), he said President Aquino had no liability with respect to the Disbursement Acceleration Program which the high court had earlier declared unconstitutional. But he was also quick to say that, if appointed to the high court, he would be objective in his actions and would not let personal relationships influence his decisions.

Having been involved, directly or indirectly, in the formulation of some of the actions of Mr. Aquino that are expected to be used as basis for possible suits against him, Caguioa may find himself under pressure to recuse or disqualify himself from participating in the deliberations of those cases. If he does not, he will likely be criticized for lack of delicadeza or forcing himself into the case to protect his former boss and classmate.

But while getting off a case for that reason may look good in the public’s perception, it will be unfair to the other justices who may be forced to take on a case that may otherwise have been assigned to him. Besides, aren’t judges or justices supposed to transcend or go beyond personal biases in hearing the cases brought to them? When they took the oath to do justice to all, regardless of their station in life or circumstances, did they not commit to be objective or fair in their decisions?

Caguioa will have to perform a delicate balancing act when cases filed against President Aquino or in relation to certain acts of his administration wind up in the high court.

Doing a Pontius Pilate will not be acceptable. Caguioa will have to live up to his commitment to the JBC that when he dons the judge’s robe he will do the job expected of him and cast aside his personal feelings.

Raul J. Palabrica ( writes a weekly column in the Business section of the Inquirer.

x x x."

Chief Justice Sereno’s “presumption theory” on natural-born citizenship

Legal scholars should enlighten Chief Justice Sereno that natural-born citizenship is never acquired by “presumption”, as a general rule.

On the matter of the strict and special qualifications for the position of President, the 1935, 1973 and 1987 Constitutions define who is a natural-born Filipino citizen, what “natural-born Filipino citizenship” means, how it is acquired, and how it is lost.

Chief Justice Sereno’s “presumption theory” will disturb and endanger the stability of the “stare decisis” system of Philippine Jurisprudence if her colleagues in the Supreme Court adopt her position in the final deliberations of the Court on the pending petitions of Sen. Grace Poe.

If the “exception” (presumption theory) of Chief Justice Sereno is irresponsibly applied by the Supreme Court simply to accommodate the political ambition of Sen. Poe or to succumb to the transitory political passions and spins of the times, the Court would unwittingly weaken, if not disable, the “general rule” (i.e., the express constitutional provisions of Citizenship) to shameful and demoralizing inutility and uselessness.

It would be a grossly disappointing scenario considering that what is at stake is the paramount position of the Presidency of the Republic of the Philippines for the next six (6) years.

Not only is the Supreme Court the “court of last resort”, where, at the end of the day, numbers rule in the voting. 

More importantly, the Supreme Court is the “court of ultimate hope”; it is the “court of high scholarship”; and it is the “court of impeccable idealism and reason”.

In other words, all decisions of the Supreme Court should lead us to the high grounds of reason, equity, and morality if it desires to be the “ultimate healing institution” in our broken, wounded, and abused democratic Republic.

The principle of conspiracy may be applied suppletorily to R.A. No. 9262 cases - G.R. No. 168852

"x x x.

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

While the said provision provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC.

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus:

SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other applicablelaws, shall have suppletory application. (Emphasis supplied)

Parenthetically, Article 10 of the RPC provides:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. (Emphasis supplied)

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter.

Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on subsidiary penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the Revised Motor Vehicle Law, noting that the special law did not contain any provision that the defendant could be sentenced with subsidiary imprisonment in case of insolvency.

In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the service of sentences provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, considering the lack of similar rules under the special law.

In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the words principal, accomplices and accessories under R.A. No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, because said words were not defined therein, although the special law referred to the same terms in enumerating the persons liable for the crime of illegal recruitment.

In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the Bouncing Checks Law, noting the absence of an express provision on subsidiary imprisonment in said special law.

Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein.

With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorilyto R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law.Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be appliedsuppletorily.

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals.[23]

It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another, thus:

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts:

x x x

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of preventing further acts of violence againstthe woman or her child may include

individuals other than the offending husband, thus:

SEC. 8. Protection Orders. x x x The protection orders that may be issued under this Act shall include any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law[24] and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius finds no application here. It must be remembered that this maxim is only an ancillary rule of statutory construction. It is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature.[25]

The Court notes that petitioner unnecessarily argues at great length on the attendance of circumstances evidencing the conspiracy or connivance of Steven and respondents to cause verbal, psychological and economic abuses upon her. However, conspiracy is an evidentiary matter which should be threshed out in a full-blown trial on the merits and cannot be determined in the present petition since this Court is not a trier of facts.[26] It is thus premature for petitioner to argue evidentiary matters since this controversy is centered only on the determination of whether respondents may be included in a petition under R.A. No. 9262. The presence or absence of conspiracy can be best passed upon after a trial on the merits.

Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether respondents may be considered indispensable or necessary parties. To do so would be an exercise in superfluity.

x x x."

Wednesday, February 3, 2016

Adoption; provisions of the Family Code on adoption

Executive Order 209 
The "Family Code of the Philippines" 

"x x x.

Title VII 

Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. 

Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. 

In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD 603) 

Art. 184. The following persons may not adopt: 

(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; 

(2) Any person who has been convicted of a crime involving moral turpitude: 

(3) An alien, except: 

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity; 

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or 

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. 

Aliens not in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law (28a, EO91 and 603). 

Art. 185. Husband and wife must jointly adopt, except in the following cases: 

(1) When one spouse seeks to adopt his own illegitimate child; or 

(2) When the spouse seeks to adopt the legitimate child of the other. (29a, EO91 and PD 603) 

Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this code. (29a, EO91 and PD 603) 

Art. 187. The following may not be adopted: 

(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during minority. 

(2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and 

(3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, EO91 and PD 603) 

Art. 188. The written consent of the following to the adoption shall be necessary: 

(1) The person to be adopted, if ten years of age over; 

(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; 

(3) The legitimate and adopted children, ten years of age or over, of adopting parent or parents; 

(4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and 

(5) The spouse, if any, of the person adopting or to be adopted. (31a, EO91 and PD 603) 

Art. 189. Adoption shall have the following effects: 

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopter; 

(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and 

(3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a. (2)a, (3)a, PD 603) 

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: 

(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; 

(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; 

(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters; 

(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; 

(5) When only the adopters survive, they shall inherit the entire estate; and 

(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603) 

Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumentality acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the grounds prescribed for disinheriting an ascendant. (40a, PD 603) 

Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: 

(1) If the adopted has committed any act constituting a ground for disinheriting a descendant; or 

(2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603) 

Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of, the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. 

Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of the parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his or her surname prior to the adoption.

The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603).

Title XI
Summary Judicial Proceedings in the Family Law
Chapter 1. Scope of Application

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (n)

x x x."

Crimes under the penal clause of RA 8043, Inter-Country Adoption Act of 1995.

Republic Act No. 8043
Inter-Country Adoption Act of 1995 
(Promulgated June 7, 1995)

"x x x.

Article IV. Penalties

Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the conduct or carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred thousand pesos (P200.000), at the discretion of the court. For purposes of this Act, an adoption is illegal if it is effected in any manner contrary to the provisions of this Act or established State policies, its implementing rules and regulations, executive agreements, and other laws pertaining to adoption. Illegality may be presumed from the following acts:

(1) consent for an adoption was acquired through, or attended by coercion, fraud, improper material inducement;

(2) there is no authority from the Board to effect adoption;

(3) the procedures and safeguards placed under the law for adoption were not complied with; and

(4) the child to be adopted is subjected to, or exposed to danger, abuse and exploitation.

(b) Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents and communications of adoption applications, cases and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000), but not more than Ten thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated felony under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated.

Acts punishable under this Article, when committed by a syndicate or where it involves two or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations.

Sec. 17. Public Officers as Offenders. — Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employee or functionary concerned shall automatically suffer suspension until the resolution of the case.

x x x."

DSWD now empowered by law to issue the "Certification or Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily Committed Child."

Republic Act No. 9523 March 12, 2009


"x x x.

Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. It shall contain facts necessary to establish the merits of the petition and shall state the circumstances surrounding the abandonment or neglect of the child.

The petition shall be supported by the following documents:

(1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited child-caring or child-placing agency or institution charged with the custody of the child;

(2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The following shall be considered sufficient:

(a) Written certification from a local or national radio or television station that the case was aired on three (3) different occasions;

(b) Publication in one (1) newspaper of general circulation;

(c) Police report or barangay certification from the locality where the child was found or a certified copy of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ), Social Service Division, which states that despite due diligence, the child's parents could not be found; and

(d) Returned registered mail to the last known address of the parent(s) or known relatives, if any.

(3) Birth certificate, if available; and

(4) Recent photograph of the child and photograph of the child upon abandonment or admission to the agency or institution.

Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional office of the DSWD where the child was found or abandoned.

The Regional Director shall examine the petition and its supporting documents, if sufficient in form and substance and shall authorize the posting of the notice of the petition conspicuous place for five (5) consecutive days in the locality where the child was found.

The Regional Director shall act on the same and shall render a recommendation not later than five (5) working days after the completion of its posting. He/she shall transmit a copy of his/her recommendation and records to the Office of the Secretary within forty-eight (48) hours from the date of the recommendation.

Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the Secretary shall issue a certification declaring the child legally available for adoption within seven (7) working days from receipt of the recommendation.

Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding certificate to the National Statistic Office (NSO).

Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory.

Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily Committed Child. – The certificate declaring a child legally available for adoption in case of an involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three (3) months following such involuntary commitment.

In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the certification declaring the child legally available for adoption shall be issued by the Secretary within three (3) months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD.

Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child may recover legal custody and parental authority over him/her from the agency or institution to which such child was voluntarily committed when it is shown to the satisfaction of the DSWD that the parent(s) or legal guardian is in a position to adequately provide for the needs of the child: Provided, That, the petition for restoration is filed within (3) months after the signing of the Deed of Voluntary Commitment.

Section 8. Certification. – The certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an inter-country adoption proceeding, as provided in Republic Act No. 8043.

x x x."