West Philippine Sea - "For Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest."

Source - https://www.rappler.com/voices/thought-leaders/hague-arbitral-award-west-philippine-sea-china-not-just-piece-of-paper/

"xxx.

The Arbitral Award: Not just a piece of paper

By Former Supreme Court Senior Associate Justice ANTONIO T. CARPIO

July 17, 2022

Rappler.com 

For Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest

Editor’s Note: Remarks delivered by retired justice Antonio T. Carpio on July 16, 2022 at the webinar, “Six Years after the Arbitral Award: Developments in the South China Sea,” sponsored by the National Youth Movement for the West Philippine Sea.

When the Arbitral Tribunal at the Hague handed down its Award on July 12, 2016, China belittled the Arbitral Award as “just a piece of paper.” Most of the rest of the world, however, hailed the Arbitral Award as a landmark ruling affirming the rules-based international order governing the South China Sea.

Unfortunately, some Philippine government officials, past and present, have parroted the Chinese propaganda that the Arbitral Award is just a piece of paper. These Philippine government officials act against Philippine national interest, giving aid and comfort to China that is clearly intent on seizing vast areas of Philippine maritime zones in the West Philippine Sea. Calling the Arbitral Award as just a piece of paper is dangerously naïve.

First, prior to the Arbitral Award, there was a legal question as to which country owned the natural resources, including the oil and gas, in the West Philippine Sea enclosed by China’s nine-dash line. Both China and the Philippines claimed ownership of these resources.

Many foreign service contractors wanted legal clarity before spending millions of dollars exploring for oil and gas in the West Philippine Sea. The Arbitral Award provides for that final and definitive legal clarity. Now, a service contractor knows that if it extracts oil and gas for China in the West Philippine Sea, the Philippines can sue the service contractor in third countries where it has assets for stealing the oil and gas belonging to the Philippines.

Second, the US, UK, France, Japan, Australia, Canada, and other countries have been exercising freedom of navigation, including naval drills, in the South China Sea, invoking the Arbitral Award which affirmed the application of UNCLOS in the South China Sea unimpaired by China’s nine-dash line. Every time the navies of these countries conduct naval drills in the West Philippine Sea, they affirm that there is an EEZ in the West Philippine Sea unimpaired by China’s nine-dash line. Of course, the only coastal state that can claim an EEZ in the West Philippine Sea is the Philippines. These freedom of navigation operations of the naval powers are, in fact, the most tangible and the most robust enforcement of the Arbitral Award so far.

Third, ASEAN coastal states, as well as a growing number of coastal states worldwide, have in one form or another invoked the Arbitral Award. Indonesia invoked the Arbitral Award when it adopted the name North Natuna Sea to designate its maritime zone facing the South China Sea off the coast of the Natuna Islands. In various international fora, the Arbitral Award is routinely invoked to debunk China’s nine-dash line.

Indeed, the Arbitral Award is the most definitive and the most authoritative document declaring that China’s nine-dash line has no basis in fact and in law. Due to the Arbitral Award, China’s nine-dash line has been ridiculed by legal scholars all over the world as a gigantic fraud on the international community.

Fourth, China calls the Arbitral Award just a piece of paper because China considers the arbitral proceedings null and void since China did not participate in the arbitration. Thus, for Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest. This position of China has been thoroughly debunked as erroneous by the Arbitral Tribunal.

Article 9, Annex VII of UNCLOS on Compulsory Arbitration provides: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” When China ratified UNCLOS, China bound itself to this provision.

Clearly, the refusal of China to participate in the arbitral proceedings did not divest the Arbitral Tribunal of jurisdiction to hear and decide the case. To repeat, it is against Philippine national interest for Filipino officials to parrot China’s propaganda that the Arbitral Award is just a piece of paper. After all, the Arbitral Award affirms what is stated in our Constitution: “The State shall protect the nation’s marine wealth in its xxx exclusive economic zone and reserve its use and enjoyment exclusively to Filipino citizens.”

Fifth, to assert or enforce the Arbitral Award, the Philippines does not need the consent or permission of China. The Arbitral Award, by itself, affirms that under UNCLOS the Philippines can exclusively exploit the natural resources, including the oil and gas, in the Philippine exclusive economic zone in the West Philippine Sea without interference from any other coastal state. To repeat, the Philippines does not need China’s consent or permission to assert or enforce the Arbitral Award. For Filipino officials to say that the Philippines cannot exploit the oil and gas in its exclusive economic zone in the West Philippine Sea unless China recognizes the Arbitral Award is to baselessly grant China a veto power over the exploitation of the Philippine exclusive economic zone in the West Philippine Sea. No country in the world exercises such veto power.

Of course, we know China will never recognize the Arbitral Award – thus waiting for recognition from China is like waiting for Godot. Again, to assert or enforce the Arbitral Award, the Philippines does not need to wait for China to recognize the Arbitral Award.

Last May 2020, Malaysia sent its Petronas-commissioned survey ship West Capella to explore in its exclusive economic zone off the coast of Borneo in an area falling within China’s nine-dash line. China warned Malaysia not to proceed with the exploration. Chinese Coast Guard vessels shadowed the Malaysian survey ship West Capella. Malaysian Coast Guard and Navy vessels, however, accompanied the West Capella and protected it until it completed its exploration work. Interestingly, three US warships and an Australian frigate conducted naval drills near the area to lend moral support to the Malaysians. Thus, Malaysia, even without an Arbitral Award and without a Mutual Defense Treaty with a nuclear-armed power, asserted successfully its sovereign rights in its EEZ despite threats and bullying from China.

Last October-November 2021, Malaysia sent its drilling ship to the same area off the coast of Borneo. China warned Malaysia not to proceed with the drilling. Chinese Coast guard vessels harassed the Malaysian drilling ship almost every day. But with the Malaysian Coast Guard and Navy ships protecting its drilling ship, the drilling was completed. China, despite its threats of war and harassment, again failed to stop Malaysia from asserting its sovereign rights in Malaysian EEZ.

In mid-2021, Indonesia sent its drilling ship to drill test wells in its EEZ off the coast of the Natuna Islands facing the South China Sea, within the area encompassed by China’s nine-dash line. China told Indonesia to stop the drilling, and a four-month stand-off ensued between Indonesian Coast guard and Navy ships and Chinese Coast guard vessels. The Indonesians, declaring that they were drilling in an area where they have sovereign rights, proceeded with, and completed their drilling. China failed to stop the Indonesians. Interestingly, the US also sent its aircraft carrier Ronald Reagan near the drilling site to lend moral support to the Indonesians.

Thus, two coastal states, Malaysia and Indonesia, whose EEZs are encroached by China’s nine-dash line, asserted their sovereign rights in their EEZs despite threats of war from China and harassment from Chinese Coast guard vessels. Malaysia and Indonesia successfully asserted their sovereign rights even without an Arbitral Award or a Mutual Defense Treaty with a nuclear-armed state.

In contrast, in April 2022, when China “whispered” to former president Duterte not to cross China’s redline, Duterte slavishly ordered Forum Energy, the Service Contractor in Reed Bank, not to send its survey ship to Reed Bank, which the Arbitral Tribunal had ruled is within Philippine EEZ. Malampaya, which supplies 40% of the energy requirement of Luzon, will run out of gas in 3-5 years. The only possible replacement is Reed Bank. Without Reed Bank, the Philippines will have to import LNG – Liquified Natural Gas – to feed its gas-fired power plants in Luzon. This will send our energy costs, already the highest in Asia, soaring through the roof, burdening the consuming public and driving away potential investors.

Obviously, if we want to keep our energy costs within reasonable levels, and if we want to unburden our people from exorbitant energy costs, we must follow the example of Malaysia and Indonesia in asserting our sovereign rights in our EEZ. This requires political will, which the Duterte administration was in severe deficit of, when dealing with China.

Hopefully, the new Marcos administration will find the courage to exercise the much-needed political will, otherwise Filipinos will be condemned to suffer even higher energy costs than what they are already experiencing today.

 

– Rappler.com.

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Donations between lawful spouses and live-in partners (common-law spouses)

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Nicxon correctly cites Article 147 of the Family Code as the applicable provision and the rules on co-ownership govern the property acquired during the cohabitation or "common law" marriage of Eliodoro and Adelita.52

Article 147 of the Family Code provides:

ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)

It must be noted that the subject property was registered in the names of Eliodoro and Adelita, as spouses, and there being no proof to the contrary, the subject property is presumed to have been obtained by their joint efforts, work or industry, and was owned in equal shares by them pursuant to Article 147.

What then is the effect of the Marriage Nullity Decision (in CA-G.R. SP No. 120119) on the RWR executed in 1995 by Adelita in favor of Eliodoro over the subject property?

Nicxon contends that the RWR is valid on the ground that Eliodoro and Adelita, being mere co-owners of the subject property, either of them could donate or waive their respective shares therein provided that the consent of either partner was obtained.53

On this score, Nicxon is mistaken. The RWR is void pursuant to Article 87 of the Family Code, which provides:

ART. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a) (Emphasis supplied)

Undoubtedly, the RWR was without valuable or material consideration as found in the present case by the RTC and affirmed by the CA. The CA Decision in this case states:

x x x As correctly found by the trial court, no material consideration was given to Adelita in exchange of the execution of the Renunciation and Waiver of Rights. It thus partakes the nature of a donation or grant of gratuitous advantage between spouses which is prohibited under [Article 87 of the Family Code, which provides "every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void x x x."] Clearly, Adelita's waiver of her rights over the subject property through the [RWR] is not allowed.

[Nicxon's] argument that there was material consideration given to Adelita in exchange for her [RWR] is likewise unfounded. Adelita's admission that she received her share from the conjugal partnership of gains was made on [March 2, 2005 when she executed an affidavit as maintained by [Nicxon]. It must be recalled, however, that the [RWR] was executed on [October 29, 1995 or ten (10) years prior to the execution of the affidavit. Hence, at the time Adelita renounced and waived her rights, there was no material consideration extended to her.54

While both the CA and the RTC correctly ruled in this case that the RWR is void based on Article 87 of the Family Code, their reliance on that provision of the Article referring to "[e]very donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void" is incorrect — borne out by the fact that they erroneously believed that the marriage between Eliodoro and Adelita was valid and subsisting until Eliodoro's death. To be clear, therefore, the provision of Article 87 that squarely applies to the case is: "The prohibition shall also apply to persons living together as husband and wife without a valid marriage."

Parenthetically, the Court takes this opportunity to dispel the notion that assuming the marriage between Eliodoro and Adelita was valid at the time the RWR was executed and it had valuable or material consideration the RWR would have been valid. The RWR would still be void because the sale between the spouses during their marriage is proscribed under Article 1490 of the Civil Code,55 which provides:

ART. 1490. The husband and the wife cannot sell property to each other, except:

(1) When a separation of property was agreed upon in the marriage settlements; or

(2) When there has been a judicial separation of property under Article 191. (1458a)

The reason behind the prohibition is to protect third persons who may have contracted with a spouse, believing in the existence of certain properties, and who could easily be defrauded by removing such property by transfer to the other spouse.56

Going back to Article 87 of the Family Code, the reason for the prohibition is explained thus:

x x x This provision refers to donation inter vivos. It is dictated by the principle of unity of personality of the spouses during the marriage, and is intended to avoid possible transfer of property from one spouse to the other due to passion or avarice. The intimate relations of the spouses during the marriage places the weaker spouse under the will of the stronger, whatever the sex, so that the former might be obliged, either by abuse of affection or by threats of violence, to transfer some properties to the latter. The law seeks to prevent such exploitation in marriages which might have been contracted under this stimulus of greed.

x x x The prohibition of this article also applies to the parties in what are called "common law" marriages; otherwise, the condition of those who incurred guilt would tum out to be better than those in legal union.57

Indeed, in the landmark 1971 en banc Decision in Matabuena, wherein the donation of a parcel of land made in 1956 by Felix Matabuena in favor of Petronila Cervantes while they were living together before their marriage in 1962 was invalidated, the Court emphatically pronounced:

x x x While Art. 133 of the Civil Code considers as void a "donation between the spouses during the marriage," policy considerations of the most exigent character as well as the dictates of morality require that the same prohibition should apply to a common-law relationship. x x x

1. As announced at the outset of this opinion, a 1954 Court of Appeals decision, Buenaventura v. Bautista, interpreting a similar provision of the old Civil Code speaks unequivocally. If the policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of the Court, "to prohibit donations in favor of the other consort and his descendants because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; 'porque no se engañen despojandose el uno al otro por amor que han de consuno' [according to] the Partidas (Part. IV, Tit. XI, LAW IV), reiterating the rationale 'Ne mutuato amore invicem spoliarentur' of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife without benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), 'it would not be just that such donations should subsist, lest the condition of those who incurred guilt should turn out to be better.' So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage."

2. It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion cannot stand the test of scrutiny. It would be to indict the framers of the Civil Code for a failure to apply a laudable rule to a situation which in its essentials cannot be distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a deeply-rooted notion of what is just and what is right would be nullified if such irregular relationship instead of being visited with disabilities would be attended with benefits. Certainly a legal norm should not be susceptible to such a reproach. If there is ever any occasion where the principle of statutory construction that what is within the spirit of the law is as much a part of it as what is written, this is it. Otherwise the basic purpose discernable in such codal provision would not be attained. Whatever omission may be apparent in an interpretation purely literal of the language used must be remedied by an adherence to its avowed objective. In the language of Justice Pablo: "El espiritu que informa la ley debe ser la luz que ha de guiar a los tribunales en la aplicacion de sus disposiciones."58

The jurisprudence on the nullity of donations between the parties of a common-law relationship or exclusive cohabitation or union of a man and a woman without a valid marriage found its way into the present Article 87 of the Family Code.

Given the express prohibition under Article 87 of the Family Code, the RWR executed by Adelita in favor of Eliodoro in respect of the subject property is void.

Proceeding to the third issue, given the nullity of the RWR, is the DoD that Eliodoro executed in favor of Nicxon over the subject property valid?

If the marriage between Eliodoro and Adelita was valid and their property regime was either the ACP or the CPG, the donation would definitely be void pursuant to Articles 98 and 125 of the Family Code, which provide:

ART. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n)

x x x x

ART. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a)

It has been opined that a donation made by the husband, without the consent of the wife, would be subject to attack as a fraudulent alienation, or an alienation impairing the interest of the wife in the conjugal partnership property.59

For onerous dispositions or encumbrances of any community property or conjugal partnership property by a spouse, the written consent of the other spouse or an authority of the court is required. In the absence of such consent or authority, the disposition or encumbrance shall be void; however, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.60

Thus, among married couples wherein the ACP or the CPG is their property regime, the consent of both spouses is required under the Family Code whether the disposition is gratuitous or onerous.

Under a regime of separation of property, pursuant to Article 145 of the Family Code, each spouse shall own, dispose of, possess, administer and enjoy his or own estate, without need of the consent of the other. Understandably, each spouse can donate or alienate onerously his or her own estate without the need of obtaining the other spouse's consent.

Under Article 147 of the Family Code, which covers the exclusive cohabitation of a man and woman as husband and wife without the benefit of marriage or under a void marriage, there is unfortunately no direct prohibition on donation of any property acquired during the cohabitation by one party without the consent of the other.

It is true that Article 147 provides that the property acquired during the cohabitation shall be governed by the rules on co-ownership and pursuant to Article 493 of the Civil Code, in a co-ownership: "Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved[; b]ut the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership."

With Article 493 of the Civil Code as basis, Eliodoro could have alienated onerously or gratuitously his part or share in the subject property to Nicxon without the consent of Adelita, who was half co-owner thereof, and the alienation would have been limited to the half portion allotted to Eliodoro upon termination of the co-ownership or partition.

Even the donation by Eliodoro of the entire subject property to Nicxon, without the consent of Adelita, could produce valid effect under Article 493, which would be limited to his share. The Court, in Bailon-Casilao v. Court of Appeals,61 explained the effect of the sale of the whole property by a co-owner, in this wise:

As earl y as 1923, this Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale [Punsalan v. Boon Liat, 44 Phil. 320 (1923)]. This is because under the aforementioned codal provision [(Article 493)], the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common. [Ramirez v. Bautista, 14 Phil. 528 (1909)]. x x x62

In Paulmitan v. Court of Appeals,63 the Court reiterated that the sale by one co-owner of the property owned in common without the consent of the others did not vest in the buyer ownership over the entire property, but merely transferred to the buyer the undivided share of the seller, making the buyer the co-owner of the subject property.

Consequently, if Article 493 of the Civil Code were to be applied, the donation to Nicxon of the subject property could only affect the one-half share of Eliodoro and the one-half share of Adelita could not have been transferred to Nicxon by virtue of the DoD.

However, Article 493 of the Civil Code cannot supersede, and must yield to, Article 147 of the Family Code, which expressly mandates that: "Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation." The reason for this amendment to Article 14464 of the Civil Code rule, as it is now expressed in the Family Code, is this:

x x x If the parties are allowed to dispose of their shares in said properties like in a true co-ownership, it will destroy their relationship. The Family Code, as already stated, would like to encourage the parties to legalize their union some day and is just smoothing out the way until their relationship ripens into a valid union.65

One eminent civil law expert distinguishes ordinary co-ownership and "special co-ownership" under Article 147 in this manner:

x x x In ordinary co-ownership, a co-owner may validly alienate or encumber his undivided share in the common property without the consent of the other co-owners. This article [(Article 147)] creates an exception in the special co-ownership it recognizes between parties living together as husband and wife.Ꮮαwρhi৷ As long as the cohabitation lasts and the co-ownership exists, no disposition inter vivos of such undivided share can be validly made by one party without the consent of the other.66

Given the above express prohibition of a party to the cohabitation to encumber or alienate by acts inter vivos even his or her share in the property acquired during the cohabitation and owned in common, without the consent of the other party until after the termination thereof under Article 147, then the donation of any property acquired during the cohabitation by one party without the consent of the other can only be but void. The rules on ordinary co-ownership cannot apply to vest validity on the undivided share of the disposing party. The donation is simply void.

If a disposition of a party’s share in the property under special co­ ownership created by virtue of Article 147 without the consent of the other party is proscribed by law, then, and with more reason, should the disposition of the entire property under such special co-ownership by a party without the other party's consent be considered void as well.

To conclude, while the Court finds merit in Nicxon's contention that the lower courts in the present case erred in finding that the property regime between Adelita and Eliodoro was governed by the ACP as their marriage subsisted until Eliodoro died, the DoD to him of the subject property is, nonetheless, void as this is a prohibited disposition under Article 147 of the Family Code.

A Final Note

Matabuena equalized common-law relationships between a man and a woman, on the one hand, and validly married spouses on the other, in respect of the nullity of donations made between the parties. This case similarly pronounces that the prohibition against a spouse to donate any absolute community property or conjugal partnership property without the consent of the other spouse equally applies to common-law relations or cohabitations of a man and a woman without a valid marriage or under a void marriage.

Xxx."


Jurisprudence -

NICXON L. PEREZ, JR., PETITIONER, VS. AVEGAIL PEREZ-SENERPIDA, ASSISTED BY HER HUSBAND MR. SENERPIDA, RESPONDENT. G.R. No. 233365, March 24, 2021.

Source -

https://lawphil.net/judjuris/juri2021/mar2021/gr_233365_2021.html

Donations

"Matabuena (Matabuena v. Cervantes, 148 Phil. 295 [1971]), EQUALIZED common-law relationships between a man and a woman, on the one hand, and validly married spouses on the other, in respect of the NULLITY OF DONATIONS made BETWEEN THE PARTIES. This case similarly pronounces that the PROHIBITION against a spouse TO DONATE any absolute community property or conjugal partnership property WITHOUT THE CONSENT of the other spouse EQUALLY APPLIES to COMMON-LAW RELATIONS or COHABITATIONS of a man and a woman without a valid marriage or under a void marriage."

Jurisprudence -

NICXON L. PEREZ, JR., PETITIONER, VS. AVEGAIL PEREZ-SENERPIDA, ASSISTED BY HER HUSBAND MR. SENERPIDA, RESPONDENT. G.R. No. 233365, March 24, 2021.

Source -

https://lawphil.net/judjuris/juri2021/mar2021/gr_233365_2021.html

Plea bargaining in drug cases

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SC Provides Clarificatory Guidelines on Plea-Bargaining in Drugs Cases

July 28, 2022

The Supreme Court, during its En Banc deliberations on Tuesday, July 26, 2022, reaffirmed the primacy and exclusivity of its rule-making power under the Constitution, and guaranteed its precedence in governing over the plea bargaining process in drugs cases.

In the consolidated cases of People v. Montierro, (G.R No. 254564), Baldadera v. People (G.R. No. 254564); and Re: Letter of the Philippine Judges Association Expressing its Concern over the Ramifications of the Decisions in G.R. No. 247575 and G.R. No. 250295 (A.M. No. 21-07-16-SC), the Supreme Court En Banc underscored the stability and independence of the Court and its rule-making power in resolving the conflict between Department of Justice (DOJ) Circular No. 27, which prohibits plea bargaining for illegal sale of dangerous drugs to the lesser offense of illegal possession of drug paraphernalia under Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, and the SC’s Resolution in A.M. No. 18-03-16-SC adopting the Plea Bargaining Framework in Drugs Cases.

Holding that plea bargaining in the prosecution of drugs cases goes into the very matters of fundamental constitutional rights, the Court resolved to clarify the guidelines it earlier issued in A.M. No. 18-03-16-SC, dated April 10, 2018. Hence, while the Supreme Court takes judicial notice of the DOJ’s efforts to amend DOJ Circular No. 27 to conform with the Plea Bargaining Framework in Drugs Cases, the Court nevertheless issues the following guidelinesfor the guidance of both the Bench and the Bar:

Offers for plea bargaining must be initiated in writing by way of a formal written motion filed by the accused in court.

The lesser offense which the accused proposes to plead guilty to must necessarily be included in the offense charged.

Upon receipt of the proposal for plea bargaining that is compliant with the provisions of the Court’s Plea Bargaining Framework in Drugs Cases, the judge shall order that a drug dependency assessment be administered. If the accused admits drug use, or denies it but is found positive after a drug dependency test, then he/she shall undergo treatment and rehabilitation for a period of not less than six (6) months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if the penalty is still unserved. If the accused is found negative for drug use/dependency, then he/she will be released on time served, otherwise, he/she will serve his/her sentence in jail minus the counselling period at the rehabilitation center.

As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.

Though the prosecution and the defense may agree to enter into a plea bargain, it does not follow that the courts will automatically approve the proposal. Judges must still exercise sound discretion in granting or denying plea bargaining, taking into account the relevant circumstances, including the character of the accused.

The court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:

the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or

when the evidence of guilt is strong.

Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.

Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused’s plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.

If the prosecution objects to the accused’s plea bargaining proposal due tothe circumstances enumerated in item no. 5, the trial court is mandated tohear the prosecution’s objection and rule on the merits thereof. If the trialcourt finds the objection meritorious, it shall order the continuation of the criminal proceedings.

If an accused applies for probation in offenses punishable under RA No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Section 24 thereof, then the law on probation shall apply.

The Supreme Court Public Information Office will upload a copy of the Court’s Decision to the SC website once it receives an official copy from the Office of the Clerk Court En Banc. ###

Xzz. "


Source - https://sc.judiciary.gov.ph/28879/

Venue - "Criminal action must be commenced in the place where the crime was committed, or in any place where one of the essential ingredients or elements thereof occurred (Section 15, Rule 110, Rules of Criminal Procedure)." -

Tranquil G.S. Salvador III:

"xxx.

Criminal action must be commenced in the place where the crime was committed, or in any place where one of the essential ingredients or elements thereof occurred (Section 15, Rule 110, Rules of Criminal Procedure).

This is unlike in civil cases, where it may be instituted in the place where the property is located, if it is a real action, or where the parties reside, if it is a personal action, at the option of the plaintiff (Rule 4, Civil Procedure).

For example, for homicide, the action must be commenced in the city or municipality where the victim was stabbed to death; for carnapping, it must be in the place where the motor vehicle was taken; and for the sale of illegal drugs, it will be where the buy-bust operation and arrest took place.

There are two reasons for the rule: first, trial courts can only hear and try cases involving crimes committed within their territorial jurisdiction. Second, it is grounded on the fact that where the crime took place is where the witnesses and other facilities for his defense are available (Tranquil Salvador III, Criminal Procedure citing Union Bank v. People, G.R. No. 192565, 28 February 2012).

However, there are “transitory or continuing offenses”, which are crimes where “some acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory and some in another”(Rigor v. People, G.R. No. 144887, 17 November 2004) In such cases, the action can be instituted where any of its essential ingredients, or elements, occurred.

ADVERTISEMENT

For example, in violations of Batas Pambansa Blg. 22, the venue shall be in any of the places where the check is drawn, issued, delivered, or dishonored (Rigor v. People).

In a prosecution for estafa under Article 315(3) of the Revised Penal Code, the venue shall be either in the place where the deceitful manipulations or false pretenses of the accused were made, or where the damage was consummated; as “deceit and damage are the basic elements of estafa” (Tuzon v. Cruz, G.R. No. L-27410, 28 August 1975).

In kidnapping, the venue shall be wherever the victim is deprived of liberty, as “deprivation of liberty is persistent and continuing from one place to another” People v. Grospe, G.R. 74053, 20 January 1988).

To determine whether the court has jurisdiction over a criminal case, the allegations in the criminal complaint or information are examined. However, the court should dismiss the action for want of jurisdiction, if in the course of the trial, evidence shows that the offense was committed elsewhere (Isip v. People, G.R. No. 170298, 26 June 2007).

While as a general rule, criminal actions can only be instituted within the territorial borders of the place where the crime was committed, there are crimes committed outside of the Philippines but can be prosecuted here.

An example is when a person outside of the Philippines, creates counterfeit Philippine coins, currency, or securities (Article 2, Revised Penal Code).
Similarly, any person who, although physically outside the territorial limits of the Philippines, commits, conspires, or plots to finance terrorism in the Philippines shall be tried in the country (Section 19, Republic Act 10168).

This is likewise seen in the Anti-Terrorism Act of 2020, where a Filipino citizen or national outside the territorial jurisdiction of the Philippines who conspires to commit terrorism, incites to commit terrorism, recruits people to a terrorist organization, or provides material support to terrorists shall still be tried here (Section 49, Republic Act 11479).

Any violation of the Cybercrime Prevention Act may be prosecuted in the Philippines against any Filipino national regardless of the place of commission (Section 21, Republic Act 10175).

Hence, Filipinos abroad who impute a vice, crime or defect against a natural or juridical person in the Philippines through any online or virtual platform such as YouTube, Facebook, or Twitter can be prosecuted in the Philippines. They cannot raise the defense that they are outside the jurisdiction of the Philippines.

In the case of AAA v. BBB, the Supreme Court declared that the psychological and mental anguish experienced by a woman constitutes a material element of the offense of psychological violence under Republic Act No. 9262. Hence, psychological violence committed through marital infidelity is a transitory or continuing crime.

The Supreme Court explained that even if the extramarital affair causing the mental and emotional anguish is committed abroad, this does not place the offender beyond the reach of Philippine courts.

This ruling has addressed the suffering of Filipina spouses who have been victims of philandering husbands who commit infidelities outside the Philippines (G.R. No. 212448, 11 January 2018).

It must be noted that the rule that venue is jurisdictional in criminal cases does not extend to applications for search warrants, because strictly speaking there are no criminal cases yet. In Pilipinas Shell, et al. v. Romars, the court characterized a search warrant as “a special criminal process”, and concluded that “proceeding for said applications are not [being] criminal in nature … the rule that venue is jurisdictional does not apply thereto” (G.R. No. 189669, 16 February 2015).

Knowing the place where the crime or any of its elements is committed is only one aspect of jurisdiction that the prosecution should know before commencing the action.

The other aspect is the penalty of the offense. If the penalty of imprisonment exceeds six years, then the case will be filed in the Regional Trial Court; however, if it does not exceed six years regardless of the fine or accessory penalties, it will be filed in the Metropolitan or Municipal Trial Court, subject to exceptions in law (Republic Act 7691).

Xxx."

Source:

https://manilastandard.net/opinion/columns/footnotes-by-tranquil-g-s-salvador-iii/314243922/venue-is-jurisdictional.html

Levy on execution - Manuel R. Riguera

"While leafing through Professor Antonio R. Bautista’s Remedial Law Quizzer (2004 ed.), I came across Question No. 252 (at p. 116), which reads as follows:

“The sheriff, levying a writ of execution, harvested bangus from the judgment defendant’s fishpond. Is this levy proper?”

Without dwelling too much on the question, I answered in my mind that the levy is proper. After all, what could be wrong with a sheriff harvesting bangus from a fishpond pursuant to a levy on execution?

Professor Bautista’s answer to the question however took me by surprise:

“No. Levy on execution should have been by merely filing with the proper register of deeds the notice of levy because fish in a fishpond is real property. (Civil Code, Art. 415[6]; Rule 39, Sec. 9[b] last par. in relation to Rule 57, Sec. 7)”

The above answer made me realize that although the question appears deceptively easy because of its brevity, it is actually quite difficult because the reader has to unlock the core issue to come up with a credible answer. Professor Bautista’s question is an issue-spotter. The question does not present to the reader the immediate issue in a silver platter. The reader must extract the core issue himself relying upon his knowledge of the rules that may come into play.

Nonetheless, my intuition told me that the suggested answer is susceptible to challenge. I looked at the provisions cited by Professor Bautista (I supplied the emphases).

Article 415, Civil Code

“Art. 415. The following are immovable property:

…

“(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it: the animals in these places are included;”

Section 9(b), last paragraph, Rule 39 (Execution of Judgments), Rules of Court

“Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment.”

Section 7, Rule 57 (Preliminary Attachment), Rules of Court

“SEC. 7. Attachment of real and personal property; recording thereof. – Real and personal property shall be attached by the sheriff executing the writ in the following manner:

“(a) Real property, or growing crops thereon, or any interest therein … by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached ….”

The core issue presented by the problem may be stated as follows: Are the bangus real or personal property? If the bangus were real property, then levy on execution should be made, as in Professor Bautista’s answer, by filing with the register of deeds the notice of levy pursuant to Section 9(b) last paragraph of Rule 39 in relation to Section 7(a), Rule 57 of the Rules of Court. On the other hand, if the bangus were personal property, levy on execution is made by the sheriff by taking the bangus pursuant to Section 9(b) last paragraph of Rule 39 in relation to Section 7(b), Rule 57 of the Rules of Court.

To my mind the bangus are personal property and hence, the levy on execution would be proper. This is because of a thematic concept in Property Law which I recollected from my years of teaching the subject in law school.

Doctrine of mobilization by anticipation

The doctrine of mobilization by anticipation provides that if the implementation or consummation of a contract or transaction will require the removal of the real property from the land or immovable to which it is attached, then such real property is considered as personal property for purposes of that contract or transaction. In Sibal v. Valdez, 50 Phil. 512, 520-521 (1927), it was held that for purposes of execution, growing crops are considered as personal property; thus, the judgment debtor would have no right of redemption over the seized growing crops. The reason is that the growing crops would have to be harvested in order to sell them at execution.

Obviously, the bangus would have to be taken from the fishpond to sell them at public auction. Thus, the bangus are mobilized in anticipation of the forthcoming execution sale.

My suggested answer to the question would then be as follows:

“Yes, the levy on execution on the bangus from the defendant’s fishpond is proper.

“Under the Rules of Civil Procedure, the sheriff may levy on execution upon personal property by taking the same and keeping it in his custody preparatory to the execution sale. [S9(b) R39]

“Here, the bangus is considered as personal property as the same will be mobilized in anticipation of the forthcoming execution sale. Hence, the levy is proper.”

Assumption vs Presumption

A reader may answer that the levy is not proper since there was no showing that the sheriff first demanded payment from the judgment obligor before levying upon the bangus.

My criticism of this answer is that the reader is making an assumption not warranted by the question. I have emphasized to my bar exam coachees that while they can presume facts, they cannot assume them.

One cannot assume that the sheriff did not make a prior demand for payment on the judgment obligor. On the other hand, one can presume that he did because of the presumption that official duty has been regularly performed (Section 3[m], Rule 131, Rules of Court)."

Source:

https://legisperit.com/2022/07/10/a-fishy-levy/

Legal ethics

"IMMORALITY AND DISBARMENT 

By: ATTY. DENNIS GORECHO
- Columnist/CDN Digital
July 12,2022 - 09:00 AM


Passing the “best bar ever” for the new 8,241 lawyers is not enough: they have to be reminded of the highest standards of morality expected from members of the legal profession.

Discussion on disbarment is an interesting part of the legal ethics sessions of the Mandatory Continuing Legal Education (MCLE).

Good moral character is a condition which precedes admission to the Bar (Sec. 2, Rule 138, Rules of Court) and is not dispensed with upon admission.

It is a continuing qualification which all lawyers must possess (People v. Tuanda, 181 SCRA 682), otherwise, a lawyer may either be suspended or disbarred.

The practice of law is a privilege accorded only to those who measure up to the exacting standards of mental and moral fitness based on the Code of Professional Responsibility:

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

The Supreme Court stressed in several cases that if the practice of law is to remain an honorable profession and attain its basic ideals, whoever is enrolled in its ranks should not only master its tenets and principles but should also, in their lives, accord continuing fidelity to them.

Disciplinary proceedings against lawyers serve to curb misbehavior and promote excellent public service in the Judiciary.

In Advincula v. Advincula (A.C. No. 9226, June 14, 2016), lawyers are reminded to always conduct themselves in a manner as to avoid scandalizing the public by creating the belief that they are flouting the moral standards of the legal profession.

“It is expected that every lawyer, being an officer of the Court, must not only be in fact of good moral character, but must also be in deed, any lawyer guilty of gross misconduct should be suspended or disbarred even if the misconduct relates to his or her personal life for as long as the misconduct evinces his or her lack of moral character, honesty, probity or good demeanor seen to be of good moral character and leading lives in accordance with the highest moral standards of the community,” the Court said.

In Narag v. Narag (A.C. No. 3405, June 29, 1998), “immoral conduct” has been described as conduct that is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community.

Such conduct must not only be immoral, but grossly immoral, that is, it must be so corrupt as to virtually constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency.

In Ceniza v. Ceniza ( A.C. No. 8335, April 10, 2019) and Bustamante-Alejandro v. Alejandro, (A.C. No. 4256, February 13, 2004 ), the lawyers were disbarred for having abandoned their respective spouses and having maintained illicit affairs with other partners.

In Guevarra v. Eala ( 529 SCRA 1.), a lawyer was disbarred for engaging in an extra­ marital affair with a married woman.

In Perez v. Catindig, ( A.C. No. 5816, March 10, 2015), the lawyer’s subsequent marriage during the subsistence of his previous one warranted his disbarment because he displayed his deliberate disregard of the sanctity of marriage and the marital vows protected by the 1987 Constitution.

In Panagsagan vs. Panagsagan (A.C. No. 7733, October 1, 2019), the conversion of the lawyer to Islam was a feeble attempt to shield himself from the complaint, to conceal his gross immoral conduct of infidelity and to legitimize his illicit affair.

My former UP LAW professor Associate Justice Marvic Leonen said in the case of Dagala v. Quesada, Jr. (814 Phil. 103) that the negligence or utter lack of callousness of spouses who commit indiscretions as shown by their inability to ask for forgiveness, their concealment of the act from their legitimate relationships, or their lack of support for the children born out of wedlock should be aggravating and considered for the penalty to be imposed.

Proceedings for disbarment may be taken by the Supreme Court motu proprio or upon filing of a verified complaint of any person before the Supreme Court or the Integrated Bar of the Philippines.

The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts alleged and/or by such documents as may substantiate said facts.

When the integrity or morality is challenged, it is not enough that the lawyer denies the charge, for he must meet the issue and overcome the evidence presented on the charge.

The lawyer must present proof that he still maintains the degree of integrity and morality expected of him at all times.

( Peyups is the moniker of University of the Philippines. Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail info@sapalovelez.com, or call 0917-5025808 or 0908-8665786.)

Read more: https://cebudailynews.inquirer.net/452579/immorality-and-disbarment#ixzz7YoDC1aAO

Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook. "

REPUBLIC ACT No. 10707 - AN ACT AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE “PROBATION LAW OF 1976”, AS AMENDED

REPUBLIC ACT No. 10707

AN ACT AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE “PROBATION LAW OF 1976”, AS AMENDED

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 4 of Presidential Decree No. 968, as amended, is hereby further amended to read as follows:

“SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction.

“The trial court shall, upon receipt of the application filed, suspend the execution of the sentence imposed in the judgment.

“This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified decision which already imposes a probationable penalty.

“Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shall be deemed a waiver of the right to appeal.1âwphi1

“An order granting or denying probation shall not be appealable.”

SECTION 2. Section 9 of the same Decree, as amended, is hereby further amended to read as follows:

“SEC. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

“a. sentenced to serve a maximum term of imprisonment of more than six (6) years;

“b. convicted of any crime against the national security;

“c. who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one (1) day and/or a fine of more than one thousand pesos (P1,000.00);

“d. who have been once on probation under the provisions of this Decree; and

“e. who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof.”

SECTION 3. Section 16 of the same Decree, as amended, is hereby further amended to read as follows:

“SEC. 16. Termination of Probation. — After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

“The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to totally extinguish his criminal liability as to the offense for which probation was granted.

“The probationer and the probation officer shall each be furnished with a copy of such order.”

SECTION 4. Section 24 of the Same Decree is hereby amended to read as follows:

“SEC. 24. Miscellaneous Powers of Regional, Provincial and City Probation Officers. — Regional, Provincial or City Probation Officers shall have the authority within their territorial jurisdiction to administer oaths and acknowledgments and to take depositions in connection with their duties and functions under this Decree. They shall also have, with respect to probationers under their care, the powers of a police officer. They shall be considered as persons in authority.”

SECTION 5. Section 27 of the same Decree is hereby amended to read as follows:

“SEC. 27. Field Assistants, Subordinate Personnel. – Regional, Provincial or City Probation Officers shall be assisted by such field assistants and subordinate personnel as may be necessary to enable them to carry out their duties effectively.”

SECTION 6. Section 28 of the same Decree is hereby amended to read as follows:

“SEC. 28. Volunteer Probation Assistants (VPAs). — To assist the Chief Probation and Parole Officers in the supervised treatment program of the probationers, the Probation Administrator may appoint citizens of good repute and probity, who have the willingness, aptitude, and capability to act as VPAs.

“VPAs shall not receive any regular compensation except for reasonable transportation and meal allowances, as may be determined by the Probation Administrator, for services rendered as VPAs.

“They shall hold office for a two (2)-year term which may be renewed or recalled anytime for a just cause. Their functions, qualifications, continuance in office and maximum case loads shall be further prescribed under the implementing rules and regulations of this Act.

“There shall be a reasonable number of VPAs in every regional, provincial, and city probation office. In order to strengthen the functional relationship of VPAs and the Probation Administrator, the latter shall encourage and support the former to organize themselves in the national, regional, provincial, and city levels for effective utilization, coordination, and sustainability of the volunteer program.”

SECTION 7. Separability Clause. — If any provision of this Act is declared invalid, the provisions hereof not affected by such declaration shall remain in full force and effect.

SECTION 8. Repealing Clause. — All laws, executive orders, or administrative orders, rules and regulations or parts thereof which are inconsistent with this Act are hereby amended, repealed or modified accordingly.

SECTION 9. Appropriations Clause. — The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law.

SECTION 10. Implementing Rules and Regulations. — Within sixty (60) days from the approval of this Act, the Department of Justice shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act.

SECTION 11. Effectivity. — This Act shall take effect immediately after its publication in the Official Gazette or in two (2) newspapers of general circulation.

Approved,


(Sgd.) FELICIANO BELMONTE JR.

Speaker of the House

of Representatives


(Sgd.) FRANKLIN M. DRILON

President of the Senate

This Act which is a consolidation of Senate Bill No. 2280 and House Bill No. 4147 was finally passed by the Senate and the House of Representatives on September 15, 2015 and September 14, 2015, respectively.


(Sgd.) MARILYN B. BARUA-YAP

Secretary General

House of Representatives


(Sgd.) OSCAR B. YABES

Secretary of the Senate


Approved: NOV 26 2015


(Sgd.) BENIGNO S. AQUINO, III

President of the Philippines in