Monday, October 31, 2016
What are the universal human rights? - Benedetta Berti
The basic idea of human rights is that each one of us, no matter who we are or where we are born, is entitled to the same basic rights and freedoms. That may sound straightforward enough, but it gets incredibly complicated as soon as anyone tries to put the idea into practice. What exactly are the basic human rights? Who gets to pick them? Who enforces them—and how? Benedetta Berti explores the subtleties of human rights.
Lesson by Benedetta Berti, animation by Sarah Saidan.
Lesson by Benedetta Berti, animation by Sarah Saidan.
UNCLOS lecture
Lecture on the United Nations Law of the Sea Convention 1982 (UNCLOS) delivered at the University of Queensland, Australia, in 2014.
The UN Convention on the Law of the Sea: origins and importance
A short history of the law of the sea in the twentieth century and the importance of UNCLOS.
Monday, October 10, 2016
Sovereignty resides in the people. Really? - The Manila Times Online
"x x x.
AL S. VITANGCOL 3RD
Black’s Law Dictionary defines sovereignty as “the supreme, absolute, and uncontrollable power by which any independent state is governed.” It is likewise “the paramount control of the Constitution and frame of government and its administration.”
The 1987 Philippine Constitution, in Article II, Section 1 thereof, specifically states that, “Sovereignty resides in the people and all government authority emanates from them.”
The word sovereign was given importance in our Constitution. In fact, even in the Preamble to the Constitution, it was already mentioned. The Preamble is a preparatory, concise statement of the principles at work in the full text of the Constitution. Our Preamble goes like this –
“We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.”
Compare this with that of the United States of America’s Constitution, where our own Constitution was patterned in part. Its Preamble reads as follows –
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
So the framers of the present Philippine Constitution wanted us Filipinos to be sovereign. But, are we?
When are the Filipino people sovereign? It seems that the Filipino people’s sovereignty operates only when the people act as a political body, consisting of the entire number of qualified voters, and in their collective capacity, choose and elect their government officials and representatives. Nothing more.
How can the Filipino people get the sovereignty away from the rich, the oligarchs, and the powers-that-be? Maybe, not in this lifetime.
Amending the Constitution
The present administration prefers the incumbent congressmen to amend the constitution and shift to a federal form of government. However, there is always that fear that the legislators will introduce amendments that will only protect their own interests and not that of the Filipino people.
Historian and award-winning author Gordon S. Wood, in his book The Creation of the American Republic, 1776-1787, discussed the fundamental transformation of the American political thinking. He illustrated how the founding fathers of the United States rethought their political attitudes and the basic issues of governance.
According to Gordon, a brilliant and visionary lawyer by the name of James Wilson, who later became an associate justice of the Supreme Court of the United States, laid down the first principles of popular sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the United States. Wilson opined that,“Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions… This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right.”
The right of the Filipino people to exercise their sovereignty in amending the Constitution finds refuge in the dissenting opinion of then Justice Puno in the consolidated cases of Lambino et. al. vs. COMELEC (G.R. No. 174153) and Binay et. al. vs COMELEC (G.R. No. 174299). Then Justice Puno, in his usual patriotic self, rationalized:
“I wish to reiterate that in a democratic and republican state, only the people are sovereign – not the elected President, not the elected Congress, not this unelected Court. Indeed, the sovereignty of the people, which is indivisible, cannot be reposed in any organ of government. Only its exercise may be delegated to any of them. In our case, the people delegated to Congress the exercise of the sovereign power to amend or revise the Constitution. If Congress, as delegate, can exercise this power to amend or revise the Constitution, can it be argued that the sovereign people who delegated the power have no power to substantially amend the Constitution by direct action? If the sovereign people do not have this power to make substantial amendments to the Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to substantially amend the Constitution when by their sovereignty, all power emanates from them? It will take some mumbo jumbo to argue that the whole is lesser than its part.”
Indeed, the Filipino people have the sovereign power to take a direct action to amend the Constitution, and at the same time protecting the said Constitution from the scrupulous hands of traditional politicians.
x x x."
Wednesday, October 5, 2016
Sample motion to suspend criminal case based on prejudicial question - Sec. 11, Rule 116.
REPUBLIC OF THE
PHILIPPINES
REGIONAL TRIAL COURT
Xxx CITY
BRANCH xxx
PEOPLE OF THE
PHILIPPINES,
Plaintiff,
Crim.
Case No. xxx
-
Versus -
For: Violation of
Xxx Sec. 3 (g), RA 3019
(Salary Grade 14)
Barangay Chairman
No. xxx, xxx St., xxx Village
Brgy. xxx, xxx City,
Accused.
x----------------------------------------x
URGENT MOTION
TO SUSPEND PROCEEDINGS BASED ON PREJUDICIAL QUESTION PURSUANT TO
SECTION 11, PARAGRAPH “B”, RULE 116, RULES OF CRIMINAL PROCEDURE.
THE
ACCUSED, by counsel, respectfully states:
1.
This case is set for ARRAIGNMENT on xxx at 1:30
PM.
2.
The accused will not be ready for arraignment due
to the existence of a PREJUDICIAL QUESTION discussed hereinbelow.
3.
The instant criminal case is based PURELY on the:
(a)
AUDIT
OBSERVATION MEMORANDUM, dated xxx (AOM No. xxx) issued and signed by xxx,
Audit Team Leader, and xxx, Supervising Auditor/Office in Charge, a copy of
which is attached as ANNEX “1” hereof.
(b)
NOTICE OF
DISALLOWANCE, dated xxx, issued by the
COMMISSION OF AUDIT of xxx City (ND No. xxx) likewise issued and signed by
xxx, Audit Team Leader, and xxx, Supervising Auditor/Office in Charge, a copy
of which is attached as ANNEX “2” hereof.
4.
On xxx, the accused has seasonably APPEALED the
aforementioned AUDIT OBSERVATION
MEMORANDUM, dated xxx (AOM No. xxx) and NOTICE OF DISALLOWANCE, dated xxx with the National Capital Region
(NCR) of the Commission on Audit, pursuant to the COA Rules of
Procedure, as proved by the following documents:
(a)
CERTIFICATION,
dated xxx, issued by xxx, Assistant Regional Director – xxx of the
Commission on Audit, stating that the said appeal is still PENDING before the xxx
Region (xxx) office of the Commission on
Audit and that the same is docketed as xxx and entitled “xxx, ET. AL. vs. THE
SUPERVISING AUDITOR AND THE AUDIT TEAM LEADER, xxx CITY”, in re: NOTICE OF DISALLOWANCE No. xxx, dated xxx.
A copy of the said
CERTIFICATION is attached as Annex “3”
hereof;
(b)
OFFICIAL
RECEIPT No. xxx issued by the Commission on Audit on xxx proving the
payment by the accused of the APPEAL FEE of P305.02, a copy of which is attached
as Annex “4” hereof.
(c)
APPEAL
MEMORANDUM, dated xxx (notarial date), signed by the six (6) appellants xxx,
et. al., a copy of which (i.e., appeal
memorandum and its annexes) is attached as Annex
“5” hereof. The appellants in the appeal are:
X x x
X x x
X x x
X x x
X x x
X x x x
The pending COA NCR appeal
prays as follows:
“WHEREFORE, premises considered, it is respectfully prayed that:
1. The questioned NOTICE OF DISALLOWANCE SD NO. xxx, dated xxx
issued by the Appellees be SET ASIDE AND
NULLIFIED; and
2. The transaction subject
matter thereof be AFFIRMED AND DECLARED PROPER,
LEGITIMATE, LAWFUL AND VALID.
FURTHER, the Appellants pray for such and other reliefs as may be deemed just
and equitable in the premises.”
5.
A criminal case related to the instant case pending with this Branch (Branch xxx) is
pending with Branch xxx, which is docketed
as
“PEOPLE OF THE PHILIPPINES vs. xxx, et. al., docketed as Crim. Case No. xxx for violation of Sec. 3 (e), RA 3019.
5.1.
During the hearing on xxx, the Presiding Judge
of Branch xxx SUSPENDED THE
ARRAIGNMENT of the accused therein. She gave the accused therein ten days
to file their formal MOTION TO SUSPEND
PROCEEDINGS BASED ON PREJUDICIAL QUESTION, per Sec. 11, par. “B”, Rule 116 of
the Rules of Criminal Procedure.
6.
During the preliminary
investigation of the underlying cases before the Office of the OMBUDSMAN, the investigating Ombudsman REJECTED the defense
of the herein accused that the cases pending before the said Office should be
SUSPENDED BASED ON PREJUDICIAL QUESTION. Hence, two separate criminal Informations
were subsequently filed by the said Office with Branch xxx [for violation of Sec. 3, Par. “E”, RA 3019] and with Branch xxx [for violation of Sec. 3, Par. “G”, RA 3019]).
7.
Under existing jurisprudence, it is not a mandatory
or a mechanical rule that only a pending and prior CIVIL CASE is always treated
as a PREJUDICIAL QUESTION at all times or that the prejudicial question must
always be a pending and prior civil case only at all times.
7.1.
The following Supreme Court decisions allowed
the SUSPENSION of a criminal case in relation to a pending prior quasi-judicial case or a pending prior administrative
case:
(a)
OMICTIN
vs. CA, et. al., GR 148004, January 22, 2007. - In this case, the pending criminal case was one for ESTAFA while
the pending and earlier PREJUDICIAL QUESTION was a quasi-judicial case pending with the SECURITIES AND EXCHANGE COMMISSION involving intra-corporate issues.
It is similar to the legal status of the Commission on Audit insofar as the COA’s quasi-judicial power is concerned, e.g., its power to rule on appeals involving local
audit reports and local notices of disallowances, as in the case of the pending appeal of the herein
accused had timely filed with the COA National Capital Regional Office, supra.
(b)
QUIAMBAO
vs. HON. OSORIO, et. al., GR L -48157, March 16, 1988. - In this case the pending case was a civil case for ejectment and the
prejudicial question was a pending and prior administrative case being adjudicated by the Land Registration Authority (LRA).
(c)
FORTICH-CELDRAN,
et. al. vs. CELDRAN, et. al., 19 SCRA 502, cited in the aforecited case QUIAMBAO vs. HON. OSORIO, et. al., supra. – In this case the pending criminal case was for falsification and
the prejudicial question was a civil
case involving the genuineness of the subject document.
In the said case, the Supreme Court held that the administrative case for disbarment against the concerned lawyers
was a prejudicial question vis-Ã -vis the pending civil case involving the genuineness of the subject document.
The Supreme Court also held that the civil
case in turn was a prejudicial question vis-a-vis the pending criminal case for falsification.
The Supreme Court thus suspended
the criminal case to await its final ruling on the administrative case for disbarment because its final ruling on the administrative case for disbarment would
establish the guilt or innocence of the concerned lawyers with respect to the civil case involving the issue of genuineness of the subject documents.
The
civil case would in turn determine
the guilt or innocence of the accused in the pending criminal case.
WHEREFORE, premises considered, it is respectfully prayed that the proceedings
in the instant criminal case be SUSPENDED based on PREJUDICIAL QUESTION (i.e., the
pending prior quasi-judicial case involving
the unresolved/pending APPEAL OF THE ACCUSED BEFORE THE COMMISSION ON AUDIT, xxx
REGIONAL OFFICE, supra) pursuant to Section 11, Paragraph “B”, Rule 116, of the
Rules of Criminal Procedure, the same to
remain SUSPENDED until after the FINAL RESOLUTION of the pending prior PREJUDICIAL
QUESTION as discussed in the main body of this motion.
FURTHER, the accused
respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.
Xxx City, xxx.
LASERNA
CUEVA-MERCADER
LAW OFFICES
Counsel for Accused
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel/Fax: 8725443 & 8462539
X
x x x
http://lcmlaw1.blogspot.com
http://facebook.com/lcmlawlaspinascity
MANUEL LASERNA JR.
X x x
NOTICE OF HEARING
Branch Clerk of
Court
RTC xxx
Office of the City
Prosecutor
Hall of Justice
Xxx City
Prosecution and
Monitoring Bureau
Office of the
Ombudsman
3rd Flr., Ombudsman Annex Bldg.
Agham Rd., Diliman, Quezon City
Mabuhay:
We shall
present the foregoing motion to the Court on xxx, at 1:30 PM, a previously scheduled hearing (Arraignment) for the
convenience of the parties. The adverse parties are PERSONALLY SERVED copies of
this pleading. Thank you.
Manuel J. Laserna Jr.
Copy Furnished:
Office of the City
Prosecutor.
Hall of Justice
X x x City
(Personal Delivery)
Prosecution and
Monitoring Bureau
Office of the Ombudsman
3rd Flr., Ombudsman Annex Bldg.
Agham Rd., Diliman, Quezon City
(Personal Delivery)
Moot and academic - A moot case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.
See - A petition for certiorari may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions. - The Lawyer's Post.
"x x x.
“A moot case is “one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.” “[A]n action is considered ‘moot’ when it no longer presents a justiciable controversy because the issues involved have become academic or dead[,] or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties x x x. Simply stated, there is nothing for the x x x court to resolve as [its] determination x x x has been overtaken by subsequent events.”
This is the present situation here. Congress, thru R.A. No. 10149, has expressly empowered the President to establish the compensation systems of GOCCs and GFIs. For the Court to still rule upon the supposed unconstitutionality of EO 7 will merely be an academic exercise. Any further discussion of the constitutionality of EO 7 serves no useful purpose since such issue is moot in its face in light of the enactment of R.A. No. 10149. In the words of the eminent constitutional law expert, Fr. Joaquin Bernas, S.J., “the Court normally [will not] entertain a petition touching on an issue that has become moot because x x x there would [be] no longer x x x a ‘flesh and blood’ case for the Court to resolve.”
All told, in view of the supervening events rendering the petition moot, as well as its patent formal and procedural infirmities, we no longer see any reason for the Court to resolve the other issues raised in the certiorari petition.”
x x x."
Locus standi/legal standing to sue; justiceability; personal injury needed.
See - A petition for certiorari may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions. - The Lawyer's Post.
"x x x.
It has been held that as to the element of injury, such aspect is not something that just anybody with some grievance or pain may assert. It has to be direct and substantial to make it worth the court’s time, as well as the effort of inquiry into the constitutionality of the acts of another department of government. If the asserted injury is more imagined than real, or is merely superficial and insubstantial, then the courts may end up being importuned to decide a matter that does not really justify such an excursion into constitutional adjudication. The rationale for this constitutional requirement of locus standi is by no means trifle. Not only does it assure the vigorous adversary presentation of the case; more importantly, it must suffice to warrant the Judiciary’s overruling the determination of a coordinate, democratically elected organ of government, such as the President, and the clear approval by Congress, in this case. Indeed, the rationale goes to the very essence of representative democracies.
Neither can the lack of locus standi be cured by the petitioner’s claim that he is instituting the present petition as a member of the bar in good standing who has an interest in ensuring that laws and orders of the Philippine government are legally and validly issued. This supposed interest has been branded by the Court in Integrated Bar of the Phils. (IBP) v. Hon. Zamora, “as too general an interest which is shared by other groups and [by] the whole citizenry.” Thus, the Court ruled in IBP that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in that case. The Court made a similar ruling in Prof. David v. Pres. Macapagal-Arroyo and held that the petitioners therein, who are national officers of the IBP, have no legal standing, having failed to allege any direct or potential injury which the IBP, as an institution, or its members may suffer as a consequence of the issuance of Presidential Proclamation No. 1017 and General Order No. 5.
We note that while the petition raises vital constitutional and statutory questions concerning the power of the President to fix the compensation packages of GOCCs and GFIs with possible implications on their officials and employees, the same cannot “infuse” or give the petitioner locus standi under the transcendental importance or paramount public interest doctrine. In Velarde v. Social Justice Society, we held that even if the Court could have exempted the case from the stringent locus standi requirement, such heroic effort would be futile because the transcendental issue could not be resolved any way, due to procedural infirmities and shortcomings, as in the present case. In other words, giving due course to the present petition which is saddled with formal and procedural infirmities explained above in this Resolution, cannot but be an exercise in futility that does not merit the Court’s liberality. As we emphasized in Lozano v. Nograles, “while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of ‘personal injury’ to the broader ‘transcendental importance’ doctrine, such liberality is not to be abused.
x x x."
Although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction.
See - A petition for certiorari may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions. - The Lawyer's Post.
"x x x.
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction. Section 5, Article VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Italics supplied).
As such, this petition must necessar[ily] fail, as this Court does not have original jurisdiction over a petition for declaratory relief even if only questions of law are involved.
Likewise, in Southern Hemisphere Engagement Network, Inc. v. Anti Terrorism Council, we similarly dismissed the petitions for certiorari and prohibition challenging the constitutionality of R.A. No. 9372, otherwise known as the “Human Security Act of 2007,” since the respondents therein (members of the Anti-Terrorism Council) did not exercise judicial or quasi-judicial functions.
While we have recognized in the past that we can exercise the discretion and rulemaking authority we are granted under the Constitution, and set aside procedural considerations to permit parties to bring a suit before us at the first instance through certiorari and/or prohibition, this liberal policy remains to be an exception to the general rule, and thus, has its limits. In Concepcion v. Commission on Elections (COMELEC), we emphasized the importance of availing of the proper remedies and cautioned against the wrongful use of certiorari in order to assail the quasi-legislative acts of the COMELEC, especially by the wrong party. In ruling that liberality and the transcendental doctrine cannot trump blatant disregard of procedural rules, and considering that the petitioner had other available remedies (such as a petition for declaratory relief with the appropriate RTC under the terms of Rule 63 of the Rules of Court), as in this case, we categorically ruled:
The petitioner’s unusual approaches and use of Rule 65 of the Rules of Court do not appear to us to be the result of any error in reading Rule 65, given the way the petition was crafted. Rather, it was a backdoor approach to achieve what the petitioner could not directly do in his individual capacity under Rule 65. It was, at the very least, an attempted bypass of other available, albeit lengthier, modes of review that the Rules of Court provide. While we stop short of concluding that the petitioner’s approaches constitute an abuse of process through a manipulative reading and application of the Rules of Court, we nevertheless resolve that the petition should be dismissed for its blatant violation of the Rules. The transgressions alleged in a petition, however weighty they may sound, cannot be justifications for blatantly disregarding the rules of procedure, particularly when remedial measures were available under these same rules to achieve the petitioner’s objectives. For our part, we cannot and should not – in the name of liberality and the “transcendental importance” doctrine – entertain these types of petitions. As we held in the very recent case of Lozano, et al. vs. Nograles, albeit from a different perspective, our liberal approach has its limits and should not be abused.23 [emphasis supplied”
x x x"
The enactment by the City Council of Manila of the assailed ordinance and the issuance by respondent Mayor of the questioned executive order were done in the exercise of legislative and executive functions, respectively, and not of judicial or quasi-judicial functions. On this score alone, certiorari will not lie.
See - A petition for certiorari may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions. - The Lawyer's Post.
"x x x.
“First, the respondents neither acted in any judicial or quasi-judicial capacity nor arrogated unto themselves any judicial or quasi-judicial prerogatives. A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure is a special civil action that may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:
SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
Elsewise stated, for a writ of certiorari to issue, the following requisites must concur: (1) it must be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal, board, or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting [to] lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.
A respondent is said to be exercising judicial function where he has the power to determine what the law is and what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties.
Quasi-judicial function, on the other hand, is “a term which applies to the actions, discretion, etc., of public administrative officers or bodies … required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature.”
Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that gives rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to determine the law and adjudicate the respective rights of the contending parties.
The respondents do not fall within the ambit of tribunal, board, or officer exercising judicial or quasi-judicial functions. As correctly pointed out by the respondents, the enactment by the City Council of Manila of the assailed ordinance and the issuance by respondent Mayor of the questioned executive order were done in the exercise of legislative and executive functions, respectively, and not of judicial or quasi-judicial functions. On this score alone, certiorari will not lie.
x x x."
Monday, October 3, 2016
An “interested party,” in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who has a claim against the estate, such as a creditor.
AMELIA GARCIA-QUIAZON, JENNETH QUIAZON AND MARIA JENNIFER QUIAZON, PETITIONERS, VS. MA. LOURDES BELEN, FOR AND IN BEHALF OF MARIA LOURDES ELISE QUIAZON, RESPONDENT. G.R. No. 189121, July 31, 2013. - THE LAWYER'S POST.
“x x x.
“An “interested party,” in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who has a claim against the estate, such as a creditor. Also, in estate proceedings, the phrase “next of kin” refers to those whose relationship with the decedent is such that they are entitled to share in the estate as distributees.
In the instant case, Elise, as a compulsory heir who stands to be benefited by the distribution of Eliseo’s estate, is deemed to be an interested party. With the overwhelming evidence on record produced by Elise to prove her filiation to Eliseo, the petitioners’ pounding on her lack of interest in the administration of the decedent’s estate, is just a desperate attempt to sway this Court to reverse the findings of the Court of Appeals. Certainly, the right of Elise to be appointed administratix of the estate of Eliseo is on good grounds. It is founded on her right as a compulsory heir, who, under the law, is entitled to her legitime after the debts of the estate are satisfied. Having a vested right in the distribution of Eliseo’s estate as one of his natural children, Elise can rightfully be considered as an interested party within the purview of the law.
X x x.”
Void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.
AMELIA GARCIA-QUIAZON, JENNETH QUIAZON AND MARIA JENNIFER QUIAZON, PETITIONERS, VS. MA. LOURDES BELEN, FOR AND IN BEHALF OF MARIA LOURDES ELISE QUIAZON, RESPONDENT. G.R. No. 189121, July 31, 2013. - THE LAWYER'S POST.
“x x x.
“Likewise unmeritorious is petitioners’ contention that the Court of Appeals erred in declaring Amelia’s marriage to Eliseo as void ab initio. In a void marriage, it was though no marriage has taken place, thus, it cannot be the source of rights. Any interested party may attack the marriage directly or collaterally. A void marriage can be questioned even beyond the lifetime of the parties to the marriage. It must be pointed out that at the time of the celebration of the marriage of Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code, making the ruling in Niñal v. Bayadog applicable four-square to the case at hand. In Niñal, the Court, in no uncertain terms, allowed therein petitioners to file a petition for the declaration of nullity of their father’s marriage to therein respondent after the death of their father, by contradistinguishing void from voidable marriages, to wit:
[C]onsequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage.
It was emphasized in Niñal that in a void marriage, no marriage has taken place and it cannot be the source of rights, such that any interested party may attack the marriage directly or collaterally without prescription, which may be filed even beyond the lifetime of the parties to the marriage.
Relevant to the foregoing, there is no doubt that Elise, whose successional rights would be prejudiced by her father’s marriage to Amelia, may impugn the existence of such marriage even after the death of her father. The said marriage may be questioned directly by filing an action attacking the validity thereof, or collaterally by raising it as an issue in a proceeding for the settlement of the estate of the deceased spouse, such as in the case at bar. Ineluctably, Elise, as a compulsory heir, has a cause of action for the declaration of the absolute nullity of the void marriage of Eliseo and Amelia, and the death of either party to the said marriage does not extinguish such cause of action.
X x x.”
Venue in special proceedings; "residence" is actual residence.
AMELIA GARCIA-QUIAZON, JENNETH QUIAZON AND MARIA JENNIFER QUIAZON, PETITIONERS, VS. MA. LOURDES BELEN, FOR AND IN BEHALF OF MARIA LOURDES ELISE QUIAZON, RESPONDENT. G.R. No. 189121, July 31, 2013. - THE LAWYER'S POST.
“x x x.
What is the rule on venue in special proceedings, especially as in this case, a settlement of estate of a decedent? Was the marriage between Amelia and Eliseo bigamous?
“Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of a decedent should be filed in the RTC of the province where the decedent resides at the time of his death:
Sec. 1. Where estate of deceased persons settled. – If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance [now Regional Trial Court] in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance [now Regional Trial Court] of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (Emphasis supplied).
The term “resides” connotes ex vi termini “actual residence” as distinguished from “legal residence or domicile.” This term “resides,” like the terms “residing” and “residence,” is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word “domicile” still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms “residence” and “domicile” but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term “inhabitant.” In other words, “resides” should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. Venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, “residence,” in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency.
X x x.”
The P-word, according to SC | Inquirer Opinion
"x x x.
The Supreme Court reviewed the case and further reduced the crime to slight oral defamation with a fine of P200 and court costs, citing Reyes vs. People, where the Court ruled that “the expression ‘putang ina mo’ is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of profanity. We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader, on seeing Atty. Escolango, would utter words expressing anger. Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter. Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon.”
While the Philippine Supreme Court ruled twice on the P-word in the context of oral defamation, the US Supreme Court has ruled on the F-word in the context of freedom of speech. In 1968, during the height of the demonstrations against the Vietnam War, Robert Cohen was brought to court for “offensive behavior” because he wore a jacket with the words “Fuck the Draft” to a California Court Room. The US Supreme Court Justice Harlan agreed with Cohen who asserted his First Amendment right to engage in non-threatening, non-disruptive political speech. Justice Harlan opined: “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.”
x x x."
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Variance between allegation and proof
Read -
G.R. No. 194390, August 13, 2014, VENANCIO M. SEVILLA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
"x x x.
“xxx. The rules on variance between allegation and proof are laid down under Sections 4 and 5, Rule 120 of the Rules of Court, viz:
Sec. 4. Judgment in case of variance between allegation and proof. – When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.
Accordingly, in case of variance between the allegation and proof, a defendant may be convicted of the offense proved when the offense charged is included in or necessarily includes the offense proved.
There is no dispute that a variance exists between the offense alleged against Sevilla and that proved by the prosecution – the Information charged him with the intentional felony of falsification of public document under Article 171(4) of the RPC while the prosecution was able to prove reckless imprudence resulting to falsification of public documents. Parenthetically, the question that has to be resolved then is whether reckless imprudence resulting to falsification of public document is necessarily included in the intentional felony of falsification of public document under Article 171(4) of the RPC.”
x x x."
Reckless imprudence resulting to falsification of public documents is an offense that is necessarily included in the willful act of falsification of public documents - The Lawyer's Post
"x x x.
“Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional , if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes. (Emphasis supplied)
x x x."
See -
G.R. No. 194390, August 13, 2014, VENANCIO M. SEVILLA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
Petition · International Criminal Court: Investigate Duterte for Crimes Against Humanity · Change.org
"x x x.
"This campaign (of) shoot-to-kill will remain until the last day of my term if I'm still alive by then."
"I don't care about human rights, believe me."
"If a suspect draws out a gun, kill him. If he doesn't, kill him anyway."
These are words coming from Philippine president Rodrigo Duterte. Since being in office for 85 days, the estimated body count has already risen to over 1400 killed by police, with another 1900 killed by vigilantes encouraged by Duterte's shoot-to-kill policy. Prisons are overcrowded with people turning themselves in for fear of getting killed. Duterte has waged a war on drugs with blatant disregard for people's lives and human rights. Police and vigilantes are carrying out his orders and willfully ignoring people's right to due process and a fair trial. Duterte is encouraging both police and civilians to kill anyone suspected of drug dealing or even drug use, resulting in the deaths of many people including those who were wrongfully accused, children, and innocent bystanders.
Since the Philippines is a signatory party to the Rome Statute, the International Criminal Court has jurisdiction over crimes against humanity, genocide, war crimes, or crimes of aggression committed within its territory. We are urging the International Criminal Court to investigate Duterte for his crimes against humanity, particularly for ordering and encouraging extrajudicial killings and summary executions while he was mayor of Davao City and now while serving as the president of the Philippines. The Philippine Senate has started an inquiry into these extrajudicial killings, but it is unable to conduct an effective and impartial investigation, with its members engaging in ad hominem attacks against each other and Senator Leila De Lima, who is a staunch Duterte critic, being ousted from her role as the head of the Senate's justice committee and who is now fearing for her life. De Lima's replacement, Senator Richard Gordon, is a Duterte supporter who has called for granting Duterte emergency powers to allow police and the military to make arrests without a warrant. The majority of the senators in the justice committee are supporters of the president himself, and this does not promise an unbiased look into the current situation the country is facing. Moreover, Duterte has threatened to declare martial law if the Philippine judiciary interferes with his war on drugs. The people of the Philippines deserve justice and for their right to life, liberty and security of person to be restored and not threatened. As an impartial body, we urge the International Criminal Court to investigate these killings and prosecute if necessary.
This petition will be delivered to:
International Criminal Court
Office of the Prosecutor
x x x."
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