Monday, August 15, 2022
Period for Final Medical Assessment and Referral to a Third Doctor for Disability Claims
Read. - https://sc.judiciary.gov.ph/29033/
"SC Reminds Manning Industry on Period for Final Medical Assessment and Referral to a Third Doctor for Disability Claims
August 1, 2022
The Supreme Court reminded the manning industry to strictly observe the required period in giving final medical assessment in connection with disability claims, and the mandatory procedure on the referral to a third doctor in cases of conflict between the medical opinions of the company-designated physician and the seafarer’s chosen physician.
These reminders were articulated by the Court in a Decision penned by Chief Justice Alexander G. Gesmundo that denied the appeal by certiorari of a shipping firm and affirmed with modification the rulings of the Court of Appeals (CA) that ordered the former employers of a seafarer to pay him total and permanent disability benefits.
Benhur Shipping Corporation (BSC)/Sun Marine Shipping S.A. (SMS) and Edgar B. Bruselas sought to reverse and set aside the rulings of the CA which, in turn, annulled and set aside the July 16, 2015 Decision of the National Labor Relations Commission (NLRC) and granted total disability benefits to respondent Alex P. Riego. The NLRC upheld the February 27, 2015 Decision of the Labor Arbiter (LA) which partially granted respondent’s claim for disability benefits and ordered the petitioners to pay respondent Riego the total amount of US$7,465.00 pursuant to Grade 11 Disability Assessment – 1/3 loss of lifting power as determined by the company designated physician plus 10% attorney’s fees.
On October 8, 2013, BSC engaged Riego’s work as Chief Cook on board the vessel MV Hikari I, an ocean-going vessel of its foreign principal, SMS.
On the first week of December 2013, Riego suffered from abdominal and lower back pain while on board the vessel. After he was examined by a doctor in Thailand and given medications, he was recommended for repatriation for further medical evaluation. Riego returned to the Philippines on December 15, 2013 and was endorsed by BSC to Marine Medical Services wherein he was attended to by the company-designated physician, for further medical care and treatment.
On December 16, 2013, the company-designated physician issued the first Medical Report stating that Riego was referred to a gastro-enterologist and orthopedic surgeon. The specialist recommended that Riego undergo laboratory exam, gastroscopy, ultrasound of the whole abdomen and magnetic resonance imaging, or MRI, of the lumbosacral spine. He was requested to come back the following day for reevaluation.
Subsequently, the company-designated physician issued four more Medical Reports until the same issued the final Medical Report on May 26, 2014, stating that on follow-up check-up, Riego still complained of lower back pain radiating to the left lower extremity with no significant improvement with physical therapy, and there was still sensory deficit on his left leg. The company-designated physician further stated that if respondent is entitled to disability benefits, his final disability grading under the POEA schedule of disabilities remains at Grade 11 – 1/3 loss of lifting power. The same issued on May 30, 2014 a certification that Riego “has under medical/surgical evaluation treatment from Dec. 16, 2013 to present due to Hiatal Hernia; L4-L5, L5-S1 Disc Bulge.”
Riego consulted a physician of his choice for a second medical opinion. On June 5, 2014, his physician of choice issued a Medical Report stating that he was permanently disabled and permanently unfit to work in any capacity. Subsequently, on two occasions, he sent a letter-request to the petitioners for referral to a third doctor, but the latter ignored his request. This prompted him to file a case with the LA especially after the shipping firm stopped shouldering his medical treatment.
The LA partially granted Riego’s complaint for disability benefits and gave credence to the medical assessment provided by the company-designated physician. The NLRC affirmed the LA’s ruling and held that Riego’s claim for permanent and total disability benefits was without basis at all. On appeal, the CA reversed and set aside the NLRC ruling.
The CA held that if the treatment of 120 days is extended to 240 days, but still no medical assessment is given, the finding of permanent and total disability becomes conclusive. It held that respondent Riego should be granted total and permanent disability benefits since no assessment was issued for a disability grade before the lapse of the 120-day period, prompting the shipping firm to elevate the case to the SC.
The SC ruled that the petition lacked merit.
The SC reiterated that for a company-designated physician to avail of the extended 240-day period, he or she must perform some complete or definite medical assessment to show that the illness still requires medical attendance beyond the 120 days, but not to exceed 240 days. In such case, the temporary total disability period is extended to a maximum of 240 days. Without sufficient justification for the extension of the treatment period, a seafarer’s disability shall be conclusively presumed to be permanent and total. Even if the 120-day period was extended to 240 days, if the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.
Petitioners claimed that there was no lapse of the 120-day period, adding that since the final medical report was issued after 156 days from repatriation, then it is within the extended 240-day period.
But the Court was not convinced. Citing the Progress Note on the 106th day of the 120-day period, the specialist noted that Riego was still suffering from lower back pain radiating to leg aggravated by prolonged sitting, standing, and walking.
Noting that after issuance of the said final medical report by the company-designated physician, the same physician issued a Certification indicating that Riego has undergone medical/surgical evaluation treatment to Hiatal Hernia; L4-L5, L5-S1 Disc Bulge from December 16, 2013 until May 30, 2014. “This evidently demonstrates that the assessment of the medical condition of respondent was still continuing and not conclusive even after the company-designated physician issued his May 26, 2014 Final Medical Report,” said the Court.
The SC further added that even if the 120-day period was extended to 240 days, there was still no proper final medical assessment issued. Citing its ruling in the case of Elburg Shipmanagement Phils., Inc. v. Quiogue, the SC said that if the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.
Based on the Medical reports, “The Court finds that respondent is suffering from permanent disability, which renders him unfit to work in any capacity as a seafarer.”
The SC said that the issue of whether Riego’s illness is compensable as total and permanent disability is a question of fact, which the SC would not disturb since, the SC “not being a trier of facts, is not duty-bound to reexamine and calibrate the evidence on record.”
However, the SC said that it was imperative to resolve the case at bar on the merits presented novel issues, such as, the form and content of the request for referral to a third doctor to resolve conflicting medical opinions involving a claim for disability benefits.
The SC noted the failure of petitioners to comply with the respondent’s request of referral to a third doctor, which has been held to be a mandatory procedure as a consequence of the provision under the POEA-SEC that the company-designated doctor’s assessment should prevail.
The SC stressed that it is the duty of the seafarer to notify his employer that he or she intends to refer the conflict to a third doctor. Once notified, the burden shifts to the employer to complete the process of referral to a third doctor so that, finally, the medical assessment of the seafarer will be put to rest.
“Accordingly, petitioners’ obliviousness to the mandatory procedure of referral to a third doctor must be taken against them,” said the SC as it cited Riego’s two letter-request for referral to a third doctor.
Furthermore, it held that when the employer fails to act on the seafarer’s valid request for referral to a third doctor, the tribunals and courts are empowered to conduct its own assessment to resolve the conflicting medical opinions.
The Court stressed that it is only through the strict observance of this compulsory procedure that assessment of the disability of the seafarer can be resolved with finality. “Consequently, the procedure laid down by the [Philippine Overseas Employment Administration-Standard Employment Contract] POEA-SEC requires mandatory fulfilment by both the employer and the seafarer. If either of the parties disregards the good faith compliance of the other, the legal consequences shall be borne by the erring party,” the Court held.
In ruling for respondent Riego, the SC ordered the petitioners to pay him total and permanent disability benefits in the amount of US$60,000.00 at the prevailing rate of exchange at the time of payment, as well as attorney’s fees equivalent to 10% of the total monetary award. Finally, all monetary awards shall earn legal interest at the rate of six percent per annum from finality of this Decision until full payment.
Justice Alfredo Benjamin S. Caguioa wrote a separate concurring and dissenting opinion.
FULL TEXT: https://sc.judiciary.gov.ph/28769/
Xxx."
Dismissal from public service by reason of conviction for Bigamy - "It held that the applicable rules would be CSC Resolution No. 991936, or the Uniform Rules on Administrative Cases in the Civil Service (URACCS), which provide that the administrative offense of Conviction of a Crime Involving Moral Turpitude is a grave offense that is punishable with dismissal from service upon first commission."
Read - https://sc.judiciary.gov.ph/29036/
"SC Affirms Dismissal of Former DFA Employee for Bigamy
August 4, 2022
The Supreme Court has affirmed the dismissal from service of a former employee of the Department of Foreign Affairs (DFA) who had been previously convicted of the crime of Bigamy.
In her Petition for Review on Certiorari, the petitioner assailed the Court of Appeals (CA) rulings which affirmed the January 5, 2015 Decision and September 28, 2015 Resolution of respondent Civil Service Commission – National Capital Region (CSC-NCR) dismissing her from service for the administrative offense of Conviction of a Crime Involving Moral Turpitude.
The petitioner was a former Secretary in the Passport Division of the DFA.
Her dismissal was spawned by a complaint-affidavit filed before the CSC in September 2002 by a complainant who alleged that petitioner and her husband contracted marriage while complainant was still married to the latter. This prompted the complainant to file a criminal case for Bigamy before the Regional Trial Court (RTC) of Lucena City. Petitioner and her husband pleaded guilty, resulting to their conviction for the crime of Bigamy.
In her counter-affidavit, petitioner alleged, among others, that her husband asked her to marry him when she became pregnant with his child, and that she had no knowledge of his previous existing marriage when she agreed to marry him.
The petitioner claimed that on July 29, 2004, the Labo, Camarines Norte RTC rendered a decision declaring the previous marriage of her husband null and void. Subsequently, on September 24, 2004, they contracted marriage in Tokyo, Japan. She said she was a victim herself and that she had no criminal intent in marrying him and did it only for the welfare of her child.
The CSC-NCR found petitioner guilty of the administrative offense of Conviction of a Crime of Moral Turpitude and meted the penalty of dismissal from service. The finding was affirmed by the CSC Proper. On further appeal, the CA affirmed the CSC’s rulings.
In a Decision penned by Justice Ramon Paul L. Hernando, the Court found the petition “not meritorious.”
The Court noted that petitioner did not contest that she was guilty of both the administrative and criminal offenses. What she assailed was the CSC’s imposition of the penalty of dismissal from service upon the finding of her administrative guilty.
It held that the applicable rules would be CSC Resolution No. 991936, or the Uniform Rules on Administrative Cases in the Civil Service (URACCS), which provide that the administrative offense of Conviction of a Crime Involving Moral Turpitude is a grave offense that is punishable with dismissal from service upon first commission.
The Court held that the CA was correct in not appreciating the mitigating circumstances ― such as the length of service, first commission, and outstanding performance ― that the petitioner invoked. Length of service cannot be given weight since the subject administrative offense is a grave offense, punishable by dismissal from services.
Said the Court: “Bigamy cannot be taken lightly as its commission reflects the person’s character. It involves moral turpitude as settled in jurisprudence. Petitioner flagrantly disregarded the law in marrying Modesto despite her knowledge of his prior and existing marriage; as the appellate court aptly observed, this ‘shows her moral depravity and cast[s] serious doubt on her fitness and integrity to continue in the public service.”
As for petitioner’s invocation of first offense and outstanding performance, the Court ruled that such had no basis under the URACCS. It stressed that the Rules are clear in stating that a first-time offender shall be dismissed from service.
FULL TEXT: https://sc.judiciary.gov.ph/28775/
Xxx."
"
Writ of Amparo vs. Extrajudicial Killing related to Tokhang drug war
Read - https://sc.judiciary.gov.ph/29098/
"SC Upholds Amparo as Remedy vs Extralegal Killings, Threats
August 9, 2022
The Supreme Court has affirmed the issuance of a writ of amparo in favor of widow Christina Gonzales, whose husband was a victim of a drug-related extralegal killing perpetrated by police officers in Antipolo City.
“The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty, or security,” the Court held.
In a Decision penned by Justice Jhosep Y. Lopez, the High Court’s Second Division unanimously denied the petition for review filed by law enforcement officers from Antipolo City questioning the November 26, 2018 Decision and the April 29, 2019 Resolution of the Court of Appeals (CA) which upheld the writ of amparo issued in favor of Christina. The said CA Decision likewise recommended the filing of appropriate civil, criminal, and administrative charges against petitioner law enforcement officers, and issued a Permanent Protection Order prohibiting them and any of their agents from entering within a radius of one kilometer from Christina’s residences and work addresses.
In denying the petition, the Court explicitly recognized the death of Christina’s husband, Joselito Gonzales, as an extralegal killing, and upheld the finding of the CA that Christina had reason to fear her life would be met with the same fate as that of her slain husband. The couple had been previously arrested for using and selling illegal drugs, but were eventually released after paying the amount of ₱50,000 demanded by the police.
The Supreme Court acknowledged the various threats to Christina’s life, liberty, and security, including the allegations that prior to the issuance of the writ of amparo in 2017, Christina and Joselito were both solicited by law enforcement agents to sell illegal drugs and were threatened on several occasions that they would be entrapped or killed. The Court also gave credence to the claim that following Joselito’s death, there were several unknown and suspicious-looking individuals who attended his funeral asking for Christina’s whereabouts.
On February 17, 2017, Christina filed before the Supreme Court a petition for a writ of amparo and Temporary Protection Order against petitioner law enforcement officers. On January 21, 2017, the Supreme Court En Banc issued a resolution granting Christina a Temporary Protection Order and directing the CA to conduct a hearing on the matter. On November 26, 2018, the CA granted a Permanent Protection Order in favor of Christina, prompting the law enforcement officers to challenge the CA ruling before the Supreme Court.
After examining the totality of evidence, the Supreme Court found that threats to the life of Christina were indeed present, and that the CA’s issuance of the writ of amparo was proper.
The Court also noted major lapses in the conduct of the police operation that resulted in Joselito’s death, raising doubts as to whether a legitimate buy-bust operation really took place. It was also noted by the Court how the law enforcement agents failed to follow several directives to reopen the investigation of Joselito’s case. The High Tribunal further stressed that no documentation was provided to show that the usual procedure under Section 21 of R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, was observed when the illegal drugs were seized.
“The fact that respondent (Christina) and Joselito were previously arrested for selling illegal drugs is beside the point. As stated earlier, even if the respondent committed a crime, the petitioners, as law enforcement agents, are not at liberty to disregard the respondent’s constitutionally guaranteed rights to life, liberty, and security,” the Court added.
The SC Public Information Office will upload the full text of the decision on the SC website once available."
Dual citizen by birth, not by naturalization
Read - https://sc.judiciary.gov.ph/29129/
"SC: Naturalization Does not Apply to Dual Citizens by Birth
August 12, 2022
The Supreme Court has held that Filipinos born to one Filipino parent and one foreign parent are considered dual citizens by birth and not by naturalization, regardless of subsequent acts performed to confirm the foreign citizenship.
In a Decision penned by Justice Ricardo R. Rosario, the Supreme Court En Banc granted the Petition for Certiorari and Prohibition filed by Mariz Lindsey Tan Villegas Gana-Carait, and annulled and set aside the Commission on Elections (COMELEC) En Banc Resolution dated September 23, 2021 which denied Gana-Carait’s Motion for Reconsideration of the COMELEC First Division’s Resolution dated February 27, 2019. The said COMELEC resolutions denied the petition to disqualify Gana-Carait as a candidate for Member of the Sangguniang Panlungsod of the Lone District of BiƱan, Laguna for the May 2019 elections, but granted the petition to deny due course to or cancel her certificate of candidacy (CoC).
On October 17, 2018, Gana-Carait filed her CoC for the May 2019 National and Local Elections. Two petitions were then filed before the COMELEC against her: one for her disqualification, on the ground that she failed to renounce her United States (US) citizenship; the other for the cancellation of her COC, for false representations on her eligibility to run for office given her American citizenship.
The COMELEC’s First Division resolved the consolidated cases in its February 27, 2019 Resolution, dismissing the petition for disqualification but granting the petition for the cancellation of Gana-Carait’s COC, finding that she was a dual citizen by naturalization because of positive acts subsequently performed by her mother to secure a Consular Report of Birth Abroad of a Citizen of the United States of America and a US passport for Gana-Carait.
Thus, the COMELEC held that Gana-Carait must comply with RA No. 9225, or the Citizenship Retention and Re-acquisition Act, which requires candidates who are dual citizens by naturalization to take an oath of allegiance to the Republic of the Philippines and to renounce their foreign citizenship. Gana-Carait moved to reconsider the ruling, but was denied by the COMELEC En Banc, prompting Gana-Carait to go to the Supreme Court.
In ruling to set aside COMELEC’s cancellation of Gana-Carait’s COC, the Court held that Gana-Carait, who was born to a Filipino father and an American mother, is a dual citizen by birth, and not by naturalization.
The Court also found that the subsequent positive acts made by Gana-Carait’s mother to request confirmation from the United States Consular Service of Gana-Carait’s US citizenship is not considered a naturalization process but a mere presentation of documentary evidence to establish the fact that Gana-Carait is an American citizen by birth.
The Court held that since Gana-Carait is a dual citizen by birth, and not by naturalization, she is not covered by the provisions of the Citizenship Retention and Re-acquisition Act requiring candidates who are dual citizens by naturalization to take an oath of allegiance to the Republic of the Philippines and to renounce their foreign citizenships in order to become eligible for elective office. As a dual citizen by birth, Gana-Carait is thus considered a Filipino qualified to run for public office. Hence, she could not be said to have made a false representation in her COC, ruled the Court.
The Court also harmonized conflicting provisions under the COMELEC Rules of Procedure (COMELEC Rules) and the Rules of Court on the reckoning point for the 30-day period within which one can challenge a COMELEC ruling before the Supreme Court through a petition for certiorari.
Under Section 3, Rule 64 of the Rules of Court, which is based on Section 7, Article IX of the Constitution, a petition for certiorari shall be filed within 30 days from notice of the judgment, final order, or resolution to be reviewed. Section 1, Rule 37 of the COMELEC Rules, however, provides that such petition must be filed within 30 days from the promulgation date. Further, Section 3 of the same Rule declares that decisions in petitions to cancel COCs become final and executory after five days from promulgation, unless restrained by the Court.
The Court held that the COMELEC Rules are merely procedural and thus cannot override substantive law, especially the Constitution. The COMELEC Rules cannot be applied in a way that would shorten the constitutionally mandated period within which aggrieved parties can question an adverse COMELEC ruling.
The Court ruled that to harmonize the COMELEC Rules with the Constitution and the Rules of Court, the proper interpretation of Section 8, Rule 23 of the COMELEC Rules is that COMELEC rulings, in the absence of a restraining order from the Supreme Court, issued within five days from receipt of the aggrieved party, shall be rendered only executory, but not final.
In the case of Gana-Carait, despite the COMELEC’s issuance of the Certificate of Finality, Entry of Judgment, and Writ of Execution, the challenged COMELEC ruling did not actually attain finality since Gana-Carait was able to file the Petition for Certiorari before the Supreme Court within 30 days from notice of the COMELEC ruling.
The SC Public Information Office will upload the full text of the Decision on the SC website once available."
Recognition of foreign divorce
Read - https://sc.judiciary.gov.ph/29120/
"SC Reiterates Rule in Judicial Recognition of Foreign Divorce
August 10, 2022
The Supreme Court has reiterated the rule that in petitions for judicial recognition of foreign divorce, one must prove not only the fact of divorce but also the national law of the foreign spouse for the divorce ruling to be legally recognized in the Philippines.
In a 10-page Decision penned by Justice Ramon Paul L. Hernando, the Court remanded to the Regional Trial Court (RTC) of San Pedro City, Laguna, Branch 93 for further proceedings and reception of evidence on the Japanese law on divorce the petition for judicial recognition of foreign divorce filed by a Filipino citizen who divorced her Japanese husband in 2007.
In 2015, respondent Jocelyn Asusano Kikuchi filed before the RTC a petition for judicial recognition her foreign divorce. She claimed she married Fumio U. Kikuchi in 1993, and in 2007, they jointly filed for divorce before the City Hall of Sakado City, Saitama Prefecture. The Sakado City Mayor issued an Acceptance Certificate stating that her and Fumio’s written notification of divorce had been accepted. The Acceptance Certificate was accompanied by an Authentication from the Philippine Embassy in Tokyo, Japan.
The RTC granted Jocelyn’s petition, holding that the latter was able to establish the fact of divorce and the national law of Japan. The Republic, through the Office of the Solicitor General, moved to reconsider the RTC decision, but its motion was denied. The Republic then appealed before the Court of Appeals (CA), which denied the same, prompting the former to elevate the matter before the Supreme Court.
The Supreme Court found the Republic’s petition meritorious.
The Court held that while Jocelyn established the fact of divorce by submitting the Acceptance Certificate as authenticated by the Philippine Embassy in Tokyo, Japan, she was not able to establish the law of Japan on divorce.
The Court underscored that for a petition for judicial recognition of foreign divorce to prosper, the party pleading it must prove the fact of divorce and the national law of the foreign spouse.
Under Article 26 of Executive Order No. 209, series of 1987, as amended, or The Family Code of the Philippines, a divorce between a foreigner and a Filipino may be recognized in the Philippines as long as it was validly obtained according to the foreign spouse’s national law.
Before a foreign divorce decree can be recognized by the court, the party pleading it must first prove the fact of divorce and its conformity to the foreign law allowing it.
To prove that the divorce was valid under Japanese laws, Jocelyn submitted a photocopy of the English translation of the Civil Code of Japan, published by Eibun-Horei-Sha, Inc. and stamped with “LIBRARY, Japan Information and Culture Center, Embassy of Japan, 2627 Roxas Boulevard, Pasay City.”
The Court was not convinced. It held that such document is devoid of any probative value. “Not being an official translation, the document submitted by Jocelyn does not prove the existing law on divorce in Japan. Unfortunately, without such evidence, there is nothing on record to establish that the divorce between Jocelyn and Fumio was validly obtained and is consistence with the Japanese law on divorce,” it said.
It added: “Given that Jocelyn was able to prove the fact of divorce but not the Japanese law on divorce, a remand of the case rather than its outright dismissal is proper. This is consistent with the policy of liberality that the Court has adopted in cases involving the recognition of foreign decrees to Filipinos in mixed marriage.”
Thus, the Supreme Court granted the petition and reversed and set aside the assailed November 15, 2018 Decision of the CA.
FULL TEXT: https://sc.judiciary.gov.ph/29085/.
Xxx."
Friday, August 12, 2022
Appeal of decisions of Regional Trial Court in graft cases is to the Sandiganbayan, not the Court of Appeals
"There is no quibble that SideƱo, through his counsel, had taken a wrong procedure. Inasmuch as SideƱo is a low-ranking public officer, having a salary grade below 27, he should have sought relief on the RTC verdict of conviction from the SB, pursuant to P.D. No. 1606, as amended by R.A. No. 10660, specifically Section 4 thereof..."
[ G.R. No. 235640, September 03, 2020 ]
ROLANDO S. SIDEĆO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66331
Deferred implementation of Personal Property Security Act
R.A. No. 11057, approved in 2018, is known as the "PERSONAL PROPERTY SECURITY ACT".
It applies to all transactions of any form that SECURE AN OBLIGATION with MOVABLE COLLATERAL, EXCEPT interests in AIRCRAFTS subject to Republic Act No. 9497, or the "Civil Aviation Authority Act of 2008", and interests in SHIPS subject to Presidential Decree No. 1521, or the "Ship Mortgage Decree of 1978. (Section 4).
Please note SECTION 68 of the law, which provides that notwithstanding the entry into force of the Act under Section 67, the IMPLEMENTATION thereof shall be CONDITIONED UPON THE REGISTRY BEING ESTABLISHED AND OPERATIONAL UNDER SECTION 26.
NOTABLE PROVISIONS:
SECTION 26. ESTABLISHMENT OF ELECTRONIC REGISTRY.—
(a) The Registry shall be established in and administered by the LRA.
(b) The Registry shall provide electronic means for registration and searching of notices.
Section 27. PUBLIC RECORD .—
(a) Information contained in a registered notice shall be considered as a public record.
(b) Any person may search notices registered in the Registry.
(c) The electronic records of the Registry shall be the official records.
SECTION 62. IMPLEMENTING RULES AND REGULATIONS. — Within six (6) months from the passage of this Act, the DOF in coordination with the Department of Justice, through the LRA, shall promulgate the necessary rules and regulations for’ the effective implementation of this Act.
SECTION 63. RULES ON ENFORCEMENT PROCEDURE.— Subject to Section 47, the expedited hearing/proceedings shall be conducted in a SUMMARY MANNER consistent with the declared policies of this Act and in accordance with the rules of procedure that the SUPREME COURT may promulgate.
SECTION 66. REPEALING CLAUSE .— The following laws, and all laws, decrees, orders, and issuances or portions thereof, which are inconsistent with the provisions of this Act, are hereby repealed, amended, or modified accordingly:
(a) Sections 1 to 16 of Act No. 1508, otherwise known as "THE CHATTEL MORTGAGE LAW";
(b) Articles 2085-2123, 2127, 2140-2141, 2241, 2243, and 2246-2247 of Republic Act No. 386, otherwise known as the "CIVIL CODE OF THE PHILIPPINES";
(c) Section 13 of Republic Act No. 5980, as amended by Republic Act No. 8556, otherwise known as the "FINANCING COMPANY ACT OF 1998";
(d) Sections 114-116 of Presidential Decree No. 1529, otherwise known as the "PROPERTY REGISTRATION DECREE";
(e) Section 10 of Presidential Decree No. 1529, insofar as the provision thereof is inconsistent with this Act; and
(f) Section 5(e) of Republic Act No.36, otherwise known as the "LAND TRANSPORTATION AND TRAFFIC CODE".
SECTION 68. IMPLEMENTATION .— Notwithstanding the entry into force of this Act under Section 67, the IMPLEMENTATION of the Act shall be CONDITIONED UPON THE REGISTRY BEING ESTABLISHED AND OPERATIONAL UNDER SECTION 26.
Read -
https://www.officialgazette.gov.ph/2019/10/10/implementing-rules-and-regulations-of-republic-act-no-11057/
https://www.dof.gov.ph/advocacies/personal-property-security-act/
http://www.investphilippines.info/arangkada/ra-11057-personal-property-security-act/
Probation law, as amended.
Republic Act No. 10707
AN ACT AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE “PROBATION LAW OF 1976”, AS AMENDED
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.
“An order granting or denying probation shall not be appealable.”
SEC. 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.”
Illegal termination of OFW - damages to be paid.
RA 8042 or the “Migrant Workers and Overseas Filipinos Act” -
Case:
"Under RA 8042 or the “Migrant Workers and Overseas Filipinos Act” which was passed on July 15, 1995, an overseas worker who has been terminated from employment without just or valid cause shall be entitled, among others, to his salaries for the unexpired portion of the employment contract or for three months for every year of the unexpired term, whichever is less.
Does this mean that if the three months’ salary is the lesser amount, the overseas worker will get only three months’ salary even if the unexpired portion of his contract is more than three months? This is answered in this case of Jerry.
Xxx.
And true enough, Jerry’s dismissal before the expiration of his contract was found to be in violation of the Standard Employment Contract. The shipping company was ordered to pay the unexpired portion of the contract or $5,100. The company questioned such order of payment, arguing that under RA 8042, they should pay only three months’ salary of Jerry or $1,800 since this is the lesser amount. Is the company correct?
No. The issue of whether the overseas worker is entitled to his salaries for the unexpired portion of his employment contract or for three months’ salary, whichever is less, comes into play only when the employment contract concerned has a term of at least one year or more. This is evident form the words “for every year of the unexpired term” which follows the words “salaries for three months.”
In this case, Jerry’s contract period is less than one year. So he is entitled not only to three months’ salary but for the unexpired portion of his contract. To follow the company’s thinking that Jerry is entitled to three months’ salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some.
This is contrary to the well-established rule in legal hermeneutics that, in interpreting a statute, care should be taken that every part or word thereof be given effect, since the lawmaking body is presumed to know the meaning of the words employed in the statute and to have used them advisedly."
(Marsaman Manning Agency Inc. et. al. vs. NLRC et. al. GR. No. 127195 Aug. 25, 1999.)
Read -
- https://www.philstar.com/opinion/2022/08/12/2202133/illegally-terminated
Friday, July 29, 2022
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
"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 naĆÆve.
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.
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 naĆÆve.
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.
Xxx."
Xxx."
Donations between lawful spouses and live-in partners (common-law spouses)
"xxx.
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 engaƱen 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.įĪ±wĻhi৷ 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
Thursday, July 28, 2022
Plea bargaining in drug cases
"xxx.
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/
Sunday, July 17, 2022
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
"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/
Tuesday, July 12, 2022
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. "
Saturday, July 2, 2022
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.1Ć¢wphi1
“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
Subscribe to:
Posts (Atom)