Thursday, September 1, 2022
Common carriers; extraordinary diligence; misdelivery of goods under Philippine laws.
"xxx.
Having settled the issue on the applicable Rule, we now resolve the issue of whether or not petitioners are liable for the misdelivery of goods under Philippine laws.
Under the New Civil Code, common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligencein the vigilance over goods, according to the circumstances of each case.23 Common carriers are responsible for loss, destruction or deterioration of the goods unless the same is due to flood, storm, earthquake or other natural disaster or calamity.24 Extraordinary diligence is that extreme care and caution which persons of unusual prudence and circumspection use for securing or preserving their own property or rights.25 This expecting standardimposed on common carriers in contract of carrier of goods is intended to tilt the scales in favor of the shipper who is at the mercy of the common carrier once the goods have been lodged for the shipment.26 Hence, in case of loss of goods in transit, the common carrier is presumed under the law to have been in fault or negligent.27
While petitioners concede that, as a common carrier, they are bound to observe extraordinary diligence in the care and custody of the goods in their possession, they insist that they cannot be held liable for the loss of the shipments, their extraordinary responsibility having ceased at the time the goods were discharged into the custody of the customs arrastreoperator, who in turn took complete responsibility over the care, storage and delivery of the cargoes.28
In contrast, respondent, submits that the fact that the shipments were not delivered to the consignee as statedin the bill of lading or to the party designated or named by the consignee, constitutes misdelivery thereof, and under the law it is presumed that the common carrier is at fault or negligent if the goods they transported, as in this case, fell into the hands of persons who have no right to receive them.
We sustain the position of the respondent.
Article 1736 and Article 1738 are the provisions in the New Civil Code which define the period when the common carrier is required to exercise diligence lasts, viz:
Article 1736. The extraordinary responsibility of the common carrier lasts from the time the goodsare unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive them, without prejudice to the provisions of article 1738.
Article 1738. The extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in a warehouse of the carrier at the place of destination, until the consignee has been advised of the arrival of the goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of them.
Explicit is the rule under Article 1736 of the Civil Code that the extraordinary responsibility of the common carrier begins from the time the goods are delivered to the carrier.29 This responsibility remains in full force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner exercises the right of stop page in transitu, and terminates only after the lapse of a reasonable time for the acceptance, of the goods by the consignee or such other person entitled to receive them.30
It was further provided in the samestatute that the carrier may be relieved from the responsibility for loss or damage to the goods upon actual or constructive delivery of the same by the carrier to the consignee or to the person who has the right to receive them.31 In sales, actual delivery has been defined as the ceding of the corporeal possession by the seller, and the actual apprehension of the corporeal possession by the buyer or by some person authorized by him to receive the goods as his representative for the purpose of custody or disposal.32 By the same token, there is actual delivery in contracts for the transport of goods when possession has been turned over to the consignee or to his duly authorized agent and a reasonable time is given him to remove the goods.33
In this case, there is no dispute that the custody of the goods was never turned over to the consignee or his agents but was lost into the hands of unauthorized persons who secured possession thereof on the strength of falsified documents. The loss or the misdelivery of the goods in the instant case gave rise to the presumption that the common carrier is at fault or negligent.
A common carrier is presumed to have been negligent if it fails to prove that it exercised extraordinary vigilance over the goods it transported.34 When the goods shipped are either lost or arrived in damaged condition, a presumption arises against the carrier of its failure to observe that diligence, and there need not be an express finding of negligence to hold it liable.35 To overcome the presumption of negligence, the common carrier must establish by adequateproof that it exercised extraordinary diligence over the goods.36 It must do more than merely show that some other party could be responsible for the damage.37
In the present case, petitioners failed to prove that they did exercise the degree of diligence required by law over the goods they transported. Indeed, aside from their persistent disavowal of liability by conveniently posing an excuse that their extraordinary responsibility isterminated upon release of the goods to the Panamanian Ports Authority, petitioners failed to adduce sufficient evidence they exercised extraordinary care to prevent unauthorized withdrawal of the shipments. Nothing in the New Civil Code, however, suggests, even remotely, that the common carriers’ responsibility over the goods ceased upon delivery thereof to the custom authorities. To the mind of this Court, the contract of carriage remains in full force and effect even after the delivery of the goods to the port authorities; the only delivery that releases it from their obligation to observe extraordinary care is the delivery to the consignee or his agents. Even more telling of petitioners’ continuing liability for the goods transported to the fact that the original bills of lading up to this time, remains in the possession of the notify party or consignee. Explicit on this point is the provision of Article 353 of the Code of Commerce which provides:
Article 353. The legal evidence of the contract between the shipper and the carrier shall be the bills of lading, by the contents of which the disputes which may arise regarding their execution and performance shall be decided, no exceptions being admissible other than those of falsity and material error in the drafting.
After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to him, and by virtue of the exchange of this title with the thing transported, the respective obligations and actions shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced to writing, with the exception of that provided for in Article 366.
In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed by the carrier, because of its loss or of any other cause, he must give the latter a receiptfor the goods delivered, this receipt producing the same effects as the return of the bill of lading.
While surrender of the original bill of lading is not a condition precedent for the common carrier to bedischarged from its contractual obligation, there must be, at the very least, an acknowledgement of the delivery by signing the delivery receipt, if surrender of the original of the bill of lading is not possible.38 There was neither surrender of the original copies of the bills of lading nor was there acknowledgment of the delivery in the present case. This leads to the conclusion that the contract of carriage still subsists and petitioners could be held liable for the breach thereof.
Petitioners could have offered evidence before the trial court to show that they exercised the highest degree of care and caution even after the goods was turned over to the custom authorities, by promptly notifying the consignee of its arrival at the P01i of Cristobal in order to afford them ample opportunity to remove the cargoes from the port of discharge. We have scoured the records and found that neither the consignee nor the notify paiiy was informed by the petitioners of the arrival of the goods, a crucial fact indicative of petitioners' failure to observe extraordinary diligence in handling the goods entrusted to their custody for transport. They could have presented proof to show that they exercised extraordinary care but they chose in vain, full reliance to their cause on applicability of Panamanian law to local jurisdiction. It is for this reason that we find petitioners liable for the misdelivery of the goods. It is evident from the review of the records and by the evidence adduced by the respondent that petitioners failed to rebut the prima facie presumption of negligence. We find no compelling reason to depa1i from the ruling of the Court of Appeals that under the contract of carriage, petitioners are liable for the value of the misdelivcred goods.
Xxx."
G.R. No. 156330, November 19, 2014
NEDLLOYD LIJNEN B.V. ROTTERDAM and THE EAST ASIATIC CO., LTD., Petitioners,
vs.
GLOW LAKS ENTERPRISES, LTD., Respondent.
https://lawphil.net/judjuris/juri2014/nov2014/gr_156330_2014.html
Proof of foreign law - "To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court."
"xxx.
is well settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.13 To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court14 which read:
SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreigncountry, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.
SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state,in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.
For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) itmust be attested by the officer having legal custody of the records or by his deputy; and (2) it must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice-consular or consular agent or foreign service officer, and with the seal of his office.15 Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof.16 The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.17 The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and mustbe under the official seal of the attesting officer.18
Contrary to the contention of the petitioners, the Panamanian laws, particularly Law 42 and its Implementing Order No. 7, were not duly proven in accordance with Rules of Evidence and as such, it cannot govern the rights and obligations of the parties in the case at bar. While a photocopy of the Gaceta Official of the Republica de Panama No. 17.596, the Spanish text of Law 42 which is theforeign statute relied upon by the court a quoto relieve the common carrier from liability, was presented as evidence during the trial of the case below, the same however was not accompanied by the required attestation and certification.
It is explicitly required by Section 24, Rule 132 of the Revised Rules of Court that a copy of the statute must be accompanied by a certificate of the officer who has legal custody of the records and a certificate made by the secretary of the embassy or legation, consul general, consul, vice-consular or by any officer in the foreign service of the Philippines stationed in the foreign country, and authenticated by the seal of his office. The latter requirement is not merely a technicality but is intended to justify the giving of full faith and credit to the genuineness of the document in a foreign country.19 Certainly, the deposition of Mr. Enrique Cajigas, a maritime law practitioner in the Republic of Panama, before the Philippine Consulate in Panama, is not the certificate contemplated by law. At best, the deposition can be considered as an opinion of an expert witness who possess the required special knowledge on the Panamanian laws but could not be recognized as proof of a foreign law, the deponent not being the custodian of the statute who can guarantee the genuineness of the document from a foreign country. To admit the deposition as proof of a foreign law is, likewise, a disavowal of the rationaleof Section 24, Rule 132 of the Revised Rules of Court, which isto ensure authenticity of a foreign law and its existence so as to justify its import and legal consequence on the event or transaction in issue. The above rule, however, admits exceptions, and the Court in certain cases recognized that Section 25, Rule132 of the Revised Rules of Court does not exclude the presentation of other competent evidence to prove the existence of foreign law. In Willamete Iron and Steel Works v. Muzzal20 for instance, we allowed the foreign law tobe established on the basis of the testimony in open court during the trial in the Philippines of an attorney-atlaw in San Francisco, California, who quoted the particular foreign law sought to be established.21 The ruling is peculiar to the facts. Petitioners cannot invoke the Willamete ruling to secure affirmative relief since their so called expert witness never appeared during the trial below and his deposition, that was supposed to establish the existence of the foreign law, was obtained ex-parte.
It is worth reiterating at this point that under the rules of private international law, a foreign law must be properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of the foreign country or state will be presumed to be the same as our local or domestic law. This is known as processual presumption.22 While the foreign law was properly pleaded in the case at bar, it was,however, proven not in the manner provided by Section 24, Rule 132 of the Revised Rules of Court. The decision of the RTC, which proceeds from a disregard of specific rules cannot be recognized.
Xxx."
G.R. No. 156330, November 19, 2014
NEDLLOYD LIJNEN B.V. ROTTERDAM and THE EAST ASIATIC CO., LTD., Petitioners,
vs.
GLOW LAKS ENTERPRISES, LTD., Respondent.
https://lawphil.net/judjuris/juri2014/nov2014/gr_156330_2014.html
SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state,in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.
For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) itmust be attested by the officer having legal custody of the records or by his deputy; and (2) it must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice-consular or consular agent or foreign service officer, and with the seal of his office.15 Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof.16 The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.17 The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and mustbe under the official seal of the attesting officer.18
Contrary to the contention of the petitioners, the Panamanian laws, particularly Law 42 and its Implementing Order No. 7, were not duly proven in accordance with Rules of Evidence and as such, it cannot govern the rights and obligations of the parties in the case at bar. While a photocopy of the Gaceta Official of the Republica de Panama No. 17.596, the Spanish text of Law 42 which is theforeign statute relied upon by the court a quoto relieve the common carrier from liability, was presented as evidence during the trial of the case below, the same however was not accompanied by the required attestation and certification.
It is explicitly required by Section 24, Rule 132 of the Revised Rules of Court that a copy of the statute must be accompanied by a certificate of the officer who has legal custody of the records and a certificate made by the secretary of the embassy or legation, consul general, consul, vice-consular or by any officer in the foreign service of the Philippines stationed in the foreign country, and authenticated by the seal of his office. The latter requirement is not merely a technicality but is intended to justify the giving of full faith and credit to the genuineness of the document in a foreign country.19 Certainly, the deposition of Mr. Enrique Cajigas, a maritime law practitioner in the Republic of Panama, before the Philippine Consulate in Panama, is not the certificate contemplated by law. At best, the deposition can be considered as an opinion of an expert witness who possess the required special knowledge on the Panamanian laws but could not be recognized as proof of a foreign law, the deponent not being the custodian of the statute who can guarantee the genuineness of the document from a foreign country. To admit the deposition as proof of a foreign law is, likewise, a disavowal of the rationaleof Section 24, Rule 132 of the Revised Rules of Court, which isto ensure authenticity of a foreign law and its existence so as to justify its import and legal consequence on the event or transaction in issue. The above rule, however, admits exceptions, and the Court in certain cases recognized that Section 25, Rule132 of the Revised Rules of Court does not exclude the presentation of other competent evidence to prove the existence of foreign law. In Willamete Iron and Steel Works v. Muzzal20 for instance, we allowed the foreign law tobe established on the basis of the testimony in open court during the trial in the Philippines of an attorney-atlaw in San Francisco, California, who quoted the particular foreign law sought to be established.21 The ruling is peculiar to the facts. Petitioners cannot invoke the Willamete ruling to secure affirmative relief since their so called expert witness never appeared during the trial below and his deposition, that was supposed to establish the existence of the foreign law, was obtained ex-parte.
It is worth reiterating at this point that under the rules of private international law, a foreign law must be properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of the foreign country or state will be presumed to be the same as our local or domestic law. This is known as processual presumption.22 While the foreign law was properly pleaded in the case at bar, it was,however, proven not in the manner provided by Section 24, Rule 132 of the Revised Rules of Court. The decision of the RTC, which proceeds from a disregard of specific rules cannot be recognized.
Xxx."
G.R. No. 156330, November 19, 2014
NEDLLOYD LIJNEN B.V. ROTTERDAM and THE EAST ASIATIC CO., LTD., Petitioners,
vs.
GLOW LAKS ENTERPRISES, LTD., Respondent.
https://lawphil.net/judjuris/juri2014/nov2014/gr_156330_2014.html
Friday, August 26, 2022
Stare decisis
Source - https://www.manilatimes.net/2022/08/25/business/top-business/certainty-in-judicial-practice/1855846
"CERTAINTY IN JUDICIAL PRACTICE
By NICA MARSHA GASAPO
August 25, 2022
Manila Times
STARE decisis et non quieta movere, meaning "stand by the decisions and disturb not what is settled," is a doctrine rooted in the necessity of stability, certainty and predictability in judicial decisions. Stare decisis is based on the rule that "once a question of law has been examined and decided, it should be deemed settled and closed to further argument" (De Mesa v Pepsi Cola Products Phils. Inc., GR Nos. 153063-70, Aug. 19, 2005). It stems from the principle of justice that "absent any powerful countervailing considerations, like cases ought to be decided alike" (Commissioner of Internal Revenue v The Insular Life Assurance Co. Ltd., GR 197192, June 4, 2014).
Under the Constitution, the Supreme Court is the final arbiter of controversies involving rights that are legally demandable and enforceable. Article 8 of the New Civil Code, meanwhile, provides that "judicial decisions applying to or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." To be clear, stare decisis applies only to cases decided by the Supreme Court.
The doctrine contemplates a situation where the Supreme Court has settled a controversy, and the conclusion made should be applied to those with substantially similar facts although involving different parties. This means that when the same questions are raised involving substantially similar factual backgrounds, like cases should be decided and settled the same way. As jurisprudence puts it, "the rule of stare decisis is a bar to any attempt to relitigate the same issue" (Chinese Young Men's Christian Association of the Philippine Islands v Remington Steel Corporation, GR 159422, March 28, 2008).
In a dissenting opinion in Lambino v Commission on Elections (GR Nos. 174153 and 174299, Oct. 25, 2006), former chief justice Reynato S. Puno outlined the historical development of stare decisis. He discussed that the doctrine first appeared in English Courts; that observance with precedents wherein the same issues come again in litigation was the rule; that precedents would not be adhered to if they were "plainly unreasonable" or where courts of equal level have conflicting decisions; and where "the binding force of the decision was the actual principle or principles necessary for the decision."
The principle of stare decisis then found application in the United States. Two types evolved: vertical stare decisis, which involves the duty of lower courts to adhere to and apply the decisions of higher courts to cases that have the same facts and horizontal stare decisis, which involves the duty of high courts to follow and adhere to their own precedents.
Stare decisis thus instructs observance of judicial precedents. However, based on jurisprudence, a doctrine established by the Supreme Court may be abandoned but only on "strong and compelling reasons." Otherwise, predictability and stability expected from the Supreme Court will be affected (Pepsi-Cola Products, Phil. Inc. v Pagdanganan, GR 167866, Oct. 12, 2006).
In the case of Carpio-Morales v Court of Appeals (GR Nos. 217126-27, Nov. 10, 2015), the Supreme Court abandoned a doctrine previously laid down in the case of Aguinaldo v Santos (GR 94115, Aug. 21, 1992). In the 2015 case, the Supreme Court en banc abandoned the condonation doctrine, which provides that public officials cannot be removed from their elective posts for acts and/or misconduct committed during a previous term because their reelection operates as extinguishment of their liabilities. In abandoning the condonation doctrine, the Supreme Court emphasized its duty to uphold and defend the Constitution in light of the doctrine's infirmities. It said the present Constitution "mandates that public office is a public trust and public officials shall be accountable to the people at all times."
Further, the doctrine of stare decisis aligns with the preservation of public confidence in the stability of Supreme Court decisions. Such decisions become precedents that should be followed and observed in subsequent cases by all other courts.
As enshrined in the Constitution, a doctrine or principle of law established by the Supreme Court in a decision may be modified or reversed only by the Supreme Court sitting en banc. This means that a decision or ruling rendered by a division cannot overturn that which has been decided or ruled upon by the court en banc. Hence, in Secretary of Justice v Lantion (GR 139465, Oct. 17, 2000), the Supreme Court en banc, upon motion for reconsideration, overturned its own decision (GR 139465, Jan.18, 2000) that a probable ex traditee was entitled to be notified of intended extradition and allowed to participate during the evaluation of the extradition process. In its resolution, the court en banc held that a probable extraditee was bereft of any right of notice and hearing during the evaluation of the extradition process.
Lower courts are accordingly enjoined to follow the rules and principles established by the Supreme Court. Lower court decisions, while logically and legally correct and sound, are not considered judicial precedents. At most, these decisions only have a persuasive effect. Hence, lower courts must adhere to the Supreme Court's applications of law and not go against the doctrines previously settled by the latter.
NICA MARSHA V. GASAPO is a junior associate of Mata-Perez, Tamayo and Francisco (MTF Counsel). This article is for general information only and is not a substitute for professional advice where the facts and circumstances warrant. If you have any question or comment, you can email the author at [email protected] or visit the MTF website at www.mtfcounsel.com."
Monday, August 15, 2022
Speedy justice
Read. - https://www.rappler.com/voices/thought-leaders/opinion-sure-trials-policy-suggestions-fast-track-criminal-litigation/
"[OPINION] Sure trials: Policy suggestions to fast-track pace of criminal litigation
AUG 15, 2022 1:17 PM PHT
RAYMUND NARAG
[OPINION] Sure trials: Policy suggestions to fast-track pace of criminal litigation
'Once this system matures and all incoming cases are treated this way, I predict that the pace of litigation will be reduced from the traditional two years to just four months'
The Philippines has one of the longest paces of litigation in the world. Detained accused stay in jail for an average of 528 days before their cases are disposed, with some accused staying in jail for 15-20 years while undergoing trial still unconvicted. This is such a travesty of justice.
There are multiple reasons for the case delay. These include structural reasons, such as lack of judges, prosecutors, and PAO lawyers, which translate to very high case load. Postponements usually happen as well when there are very few forensic experts and medico-legal officers, when internet is not available, and other resource limitations.
However, the piecemeal nature of calendar of hearings induces these postponements. Although the Supreme Court introduced the notion of “continuous trials,” where prosecutors and defense lawyers are given a set number of hearings (e.g. 5 hearing days for prosecutors to accommodate 5 witnesses; and the same with defense lawyers), these hearings are set FAR APART (based on my research, this could be from two months apart to a year apart). By design, the trial process extends to at least a year, and with postponements, can easily lead to two years or more.
There are other multiple disadvantages in the piecemeal approach. One, it forces the witness to go back to court multiple times, translating to added costs for them (transportation, absence at work, etc.). Two, having hearings far apart translates to memory loss on the part of the witnesses and the lawyers. Reviewing the memories of witnesses in previous hearings takes a lot of the court’s time, which could have been used for litigation. Memory loss may also lead to miscarriage of justice, as the accused can be convicted simply because they could not remember their previous responses.
Solution:
Instead of a piecemeal hearing, judges, prosecutors, and defense lawyers should adopt the concept of SURE TRIALS. In sure trials:
1. Hearings are set consecutively. All the witnesses line up and are presented in one calendar hearing day (maybe two if there are more witnesses). The court will not hear other cases on that day except the instant case. This is the approach used in many countries in the world.
2. Preparation for the hearings are done in the PRE-TRIAL stage. In this stage, prosecutors and defense lawyers contact their witnesses, prepare their testimonies, and practice their presentations. They also make sure that all witnesses are present on the day of the hearing that is allotted for them. The preparatory stage is usually three months. But once the TRIAL stage starts, it could be concluded in a week.
3. During the pre-trial stage (three months), the judges, prosecutors, and defense lawyers can determine whether the accused warrant pre-trial detention or not. This will be done in a custodial hearing which will be done immediately upon arrest. Judges should utilize two basic criteria: what is the risk of offending, and what is the risk of not appearing in court? If the risk is low (a response of NO to both questions), then the accused will be released either on bail or supervision by the community.
If the SURE TRIALs are utilized, the pace of litigation will be faster. There will be fewer postponements of hearings. Witnesses come prepared. There will be a better quality of hearings as the witnesses will not be subject to memory loss. Judges will also have an easier time deciding the cases since the lapsed time is short. It will be less work for all those involved. Finally, it will also save on money and time for the witnesses and their families. Minsanan lang silang luluwas at pupunta sa korte!
At the beginning, it will seem that some inmates will have to wait longer to have a day in court. This is true for those courts with huge backlogs. That is why courts should entertain alternatives to pre-trial detention. For example, if the detained accused are low-risk, they can be released on their own recognizance or on bail.
Once this system matures and all incoming cases are treated this way, I predict that the pace of litigation will be reduced from the traditional two years to just four months. Accused who are guilty will be pronounced guilty as soon as possible and those who are innocent are released as soon as possible.
Who will object to this process?
Private lawyers who rely on appearance fees will object to this process. Private lawyers charge their clients whether the hearings are pushed through or postponed. In fact, postponed hearings will assure that private lawyers will have a steady income. Thus, there is no financial incentive for private lawyers to fast-track the pace of criminal litigation.
To remedy this situation: private lawyers may change their fee structure. Instead of a piecemeal charge or per appearance fee, they can charge a set amount for representation. This is called a “pakyawan” where clients pay a set amount. For example, clients pay P200,000 for murder case. The defense lawyers can arrange a payment fee where their clients can pay incrementally if they cannot pay on a one-time basis. Still, the defense lawyer is already assured of an income.
Having a “pakyawan” fee structure, defense lawyers will have a financial incentive to terminate the case as soon as possible.
– Rappler.com
RAYMUND E. NARAG, PhD is an Associate Professor of Criminology and Criminal Justice at the School of Justice and Public Safety, Southern Illinois University Carbondale. "
RAYMUND E. NARAG, PhD is an Associate Professor of Criminology and Criminal Justice at the School of Justice and Public Safety, Southern Illinois University Carbondale. "
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/
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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/
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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 Biñan, 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/.
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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 Sideño, through his counsel, had taken a wrong procedure. Inasmuch as Sideño 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. SIDEÑO, 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/
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The Arbitral Award: Not just a piece of paper
By Former Supreme Court Senior Associate Justice ANTONIO T. CARPIO
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The Arbitral Award: Not just a piece of paper
By Former Supreme Court Senior Associate Justice ANTONIO T. CARPIO
July 17, 2022
Rappler.com
For Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest
Editor’s Note: Remarks delivered by retired justice Antonio T. Carpio on July 16, 2022 at the webinar, “Six Years after the Arbitral Award: Developments in the South China Sea,” sponsored by the National Youth Movement for the West Philippine Sea.
When the Arbitral Tribunal at the Hague handed down its Award on July 12, 2016, China belittled the Arbitral Award as “just a piece of paper.” Most of the rest of the world, however, hailed the Arbitral Award as a landmark ruling affirming the rules-based international order governing the South China Sea.
Unfortunately, some Philippine government officials, past and present, have parroted the Chinese propaganda that the Arbitral Award is just a piece of paper. These Philippine government officials act against Philippine national interest, giving aid and comfort to China that is clearly intent on seizing vast areas of Philippine maritime zones in the West Philippine Sea. Calling the Arbitral Award as just a piece of paper is dangerously naïve.
First, prior to the Arbitral Award, there was a legal question as to which country owned the natural resources, including the oil and gas, in the West Philippine Sea enclosed by China’s nine-dash line. Both China and the Philippines claimed ownership of these resources.
Many foreign service contractors wanted legal clarity before spending millions of dollars exploring for oil and gas in the West Philippine Sea. The Arbitral Award provides for that final and definitive legal clarity. Now, a service contractor knows that if it extracts oil and gas for China in the West Philippine Sea, the Philippines can sue the service contractor in third countries where it has assets for stealing the oil and gas belonging to the Philippines.
Second, the US, UK, France, Japan, Australia, Canada, and other countries have been exercising freedom of navigation, including naval drills, in the South China Sea, invoking the Arbitral Award which affirmed the application of UNCLOS in the South China Sea unimpaired by China’s nine-dash line. Every time the navies of these countries conduct naval drills in the West Philippine Sea, they affirm that there is an EEZ in the West Philippine Sea unimpaired by China’s nine-dash line. Of course, the only coastal state that can claim an EEZ in the West Philippine Sea is the Philippines. These freedom of navigation operations of the naval powers are, in fact, the most tangible and the most robust enforcement of the Arbitral Award so far.
Third, ASEAN coastal states, as well as a growing number of coastal states worldwide, have in one form or another invoked the Arbitral Award. Indonesia invoked the Arbitral Award when it adopted the name North Natuna Sea to designate its maritime zone facing the South China Sea off the coast of the Natuna Islands. In various international fora, the Arbitral Award is routinely invoked to debunk China’s nine-dash line.
Indeed, the Arbitral Award is the most definitive and the most authoritative document declaring that China’s nine-dash line has no basis in fact and in law. Due to the Arbitral Award, China’s nine-dash line has been ridiculed by legal scholars all over the world as a gigantic fraud on the international community.
Fourth, China calls the Arbitral Award just a piece of paper because China considers the arbitral proceedings null and void since China did not participate in the arbitration. Thus, for Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest. This position of China has been thoroughly debunked as erroneous by the Arbitral Tribunal.
Article 9, Annex VII of UNCLOS on Compulsory Arbitration provides: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” When China ratified UNCLOS, China bound itself to this provision.
Clearly, the refusal of China to participate in the arbitral proceedings did not divest the Arbitral Tribunal of jurisdiction to hear and decide the case. To repeat, it is against Philippine national interest for Filipino officials to parrot China’s propaganda that the Arbitral Award is just a piece of paper. After all, the Arbitral Award affirms what is stated in our Constitution: “The State shall protect the nation’s marine wealth in its xxx exclusive economic zone and reserve its use and enjoyment exclusively to Filipino citizens.”
Fifth, to assert or enforce the Arbitral Award, the Philippines does not need the consent or permission of China. The Arbitral Award, by itself, affirms that under UNCLOS the Philippines can exclusively exploit the natural resources, including the oil and gas, in the Philippine exclusive economic zone in the West Philippine Sea without interference from any other coastal state. To repeat, the Philippines does not need China’s consent or permission to assert or enforce the Arbitral Award. For Filipino officials to say that the Philippines cannot exploit the oil and gas in its exclusive economic zone in the West Philippine Sea unless China recognizes the Arbitral Award is to baselessly grant China a veto power over the exploitation of the Philippine exclusive economic zone in the West Philippine Sea. No country in the world exercises such veto power.
Of course, we know China will never recognize the Arbitral Award – thus waiting for recognition from China is like waiting for Godot. Again, to assert or enforce the Arbitral Award, the Philippines does not need to wait for China to recognize the Arbitral Award.
Last May 2020, Malaysia sent its Petronas-commissioned survey ship West Capella to explore in its exclusive economic zone off the coast of Borneo in an area falling within China’s nine-dash line. China warned Malaysia not to proceed with the exploration. Chinese Coast Guard vessels shadowed the Malaysian survey ship West Capella. Malaysian Coast Guard and Navy vessels, however, accompanied the West Capella and protected it until it completed its exploration work. Interestingly, three US warships and an Australian frigate conducted naval drills near the area to lend moral support to the Malaysians. Thus, Malaysia, even without an Arbitral Award and without a Mutual Defense Treaty with a nuclear-armed power, asserted successfully its sovereign rights in its EEZ despite threats and bullying from China.
Last October-November 2021, Malaysia sent its drilling ship to the same area off the coast of Borneo. China warned Malaysia not to proceed with the drilling. Chinese Coast guard vessels harassed the Malaysian drilling ship almost every day. But with the Malaysian Coast Guard and Navy ships protecting its drilling ship, the drilling was completed. China, despite its threats of war and harassment, again failed to stop Malaysia from asserting its sovereign rights in Malaysian EEZ.
In mid-2021, Indonesia sent its drilling ship to drill test wells in its EEZ off the coast of the Natuna Islands facing the South China Sea, within the area encompassed by China’s nine-dash line. China told Indonesia to stop the drilling, and a four-month stand-off ensued between Indonesian Coast guard and Navy ships and Chinese Coast guard vessels. The Indonesians, declaring that they were drilling in an area where they have sovereign rights, proceeded with, and completed their drilling. China failed to stop the Indonesians. Interestingly, the US also sent its aircraft carrier Ronald Reagan near the drilling site to lend moral support to the Indonesians.
Thus, two coastal states, Malaysia and Indonesia, whose EEZs are encroached by China’s nine-dash line, asserted their sovereign rights in their EEZs despite threats of war from China and harassment from Chinese Coast guard vessels. Malaysia and Indonesia successfully asserted their sovereign rights even without an Arbitral Award or a Mutual Defense Treaty with a nuclear-armed state.
In contrast, in April 2022, when China “whispered” to former president Duterte not to cross China’s redline, Duterte slavishly ordered Forum Energy, the Service Contractor in Reed Bank, not to send its survey ship to Reed Bank, which the Arbitral Tribunal had ruled is within Philippine EEZ. Malampaya, which supplies 40% of the energy requirement of Luzon, will run out of gas in 3-5 years. The only possible replacement is Reed Bank. Without Reed Bank, the Philippines will have to import LNG – Liquified Natural Gas – to feed its gas-fired power plants in Luzon. This will send our energy costs, already the highest in Asia, soaring through the roof, burdening the consuming public and driving away potential investors.
Obviously, if we want to keep our energy costs within reasonable levels, and if we want to unburden our people from exorbitant energy costs, we must follow the example of Malaysia and Indonesia in asserting our sovereign rights in our EEZ. This requires political will, which the Duterte administration was in severe deficit of, when dealing with China.
Hopefully, the new Marcos administration will find the courage to exercise the much-needed political will, otherwise Filipinos will be condemned to suffer even higher energy costs than what they are already experiencing today.
Editor’s Note: Remarks delivered by retired justice Antonio T. Carpio on July 16, 2022 at the webinar, “Six Years after the Arbitral Award: Developments in the South China Sea,” sponsored by the National Youth Movement for the West Philippine Sea.
When the Arbitral Tribunal at the Hague handed down its Award on July 12, 2016, China belittled the Arbitral Award as “just a piece of paper.” Most of the rest of the world, however, hailed the Arbitral Award as a landmark ruling affirming the rules-based international order governing the South China Sea.
Unfortunately, some Philippine government officials, past and present, have parroted the Chinese propaganda that the Arbitral Award is just a piece of paper. These Philippine government officials act against Philippine national interest, giving aid and comfort to China that is clearly intent on seizing vast areas of Philippine maritime zones in the West Philippine Sea. Calling the Arbitral Award as just a piece of paper is dangerously naïve.
First, prior to the Arbitral Award, there was a legal question as to which country owned the natural resources, including the oil and gas, in the West Philippine Sea enclosed by China’s nine-dash line. Both China and the Philippines claimed ownership of these resources.
Many foreign service contractors wanted legal clarity before spending millions of dollars exploring for oil and gas in the West Philippine Sea. The Arbitral Award provides for that final and definitive legal clarity. Now, a service contractor knows that if it extracts oil and gas for China in the West Philippine Sea, the Philippines can sue the service contractor in third countries where it has assets for stealing the oil and gas belonging to the Philippines.
Second, the US, UK, France, Japan, Australia, Canada, and other countries have been exercising freedom of navigation, including naval drills, in the South China Sea, invoking the Arbitral Award which affirmed the application of UNCLOS in the South China Sea unimpaired by China’s nine-dash line. Every time the navies of these countries conduct naval drills in the West Philippine Sea, they affirm that there is an EEZ in the West Philippine Sea unimpaired by China’s nine-dash line. Of course, the only coastal state that can claim an EEZ in the West Philippine Sea is the Philippines. These freedom of navigation operations of the naval powers are, in fact, the most tangible and the most robust enforcement of the Arbitral Award so far.
Third, ASEAN coastal states, as well as a growing number of coastal states worldwide, have in one form or another invoked the Arbitral Award. Indonesia invoked the Arbitral Award when it adopted the name North Natuna Sea to designate its maritime zone facing the South China Sea off the coast of the Natuna Islands. In various international fora, the Arbitral Award is routinely invoked to debunk China’s nine-dash line.
Indeed, the Arbitral Award is the most definitive and the most authoritative document declaring that China’s nine-dash line has no basis in fact and in law. Due to the Arbitral Award, China’s nine-dash line has been ridiculed by legal scholars all over the world as a gigantic fraud on the international community.
Fourth, China calls the Arbitral Award just a piece of paper because China considers the arbitral proceedings null and void since China did not participate in the arbitration. Thus, for Filipino officials to parrot that the Arbitral Award is just a piece of paper is to accept that the Arbitral Award is null and void, a position that is contrary to Philippine national interest. This position of China has been thoroughly debunked as erroneous by the Arbitral Tribunal.
Article 9, Annex VII of UNCLOS on Compulsory Arbitration provides: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” When China ratified UNCLOS, China bound itself to this provision.
Clearly, the refusal of China to participate in the arbitral proceedings did not divest the Arbitral Tribunal of jurisdiction to hear and decide the case. To repeat, it is against Philippine national interest for Filipino officials to parrot China’s propaganda that the Arbitral Award is just a piece of paper. After all, the Arbitral Award affirms what is stated in our Constitution: “The State shall protect the nation’s marine wealth in its xxx exclusive economic zone and reserve its use and enjoyment exclusively to Filipino citizens.”
Fifth, to assert or enforce the Arbitral Award, the Philippines does not need the consent or permission of China. The Arbitral Award, by itself, affirms that under UNCLOS the Philippines can exclusively exploit the natural resources, including the oil and gas, in the Philippine exclusive economic zone in the West Philippine Sea without interference from any other coastal state. To repeat, the Philippines does not need China’s consent or permission to assert or enforce the Arbitral Award. For Filipino officials to say that the Philippines cannot exploit the oil and gas in its exclusive economic zone in the West Philippine Sea unless China recognizes the Arbitral Award is to baselessly grant China a veto power over the exploitation of the Philippine exclusive economic zone in the West Philippine Sea. No country in the world exercises such veto power.
Of course, we know China will never recognize the Arbitral Award – thus waiting for recognition from China is like waiting for Godot. Again, to assert or enforce the Arbitral Award, the Philippines does not need to wait for China to recognize the Arbitral Award.
Last May 2020, Malaysia sent its Petronas-commissioned survey ship West Capella to explore in its exclusive economic zone off the coast of Borneo in an area falling within China’s nine-dash line. China warned Malaysia not to proceed with the exploration. Chinese Coast Guard vessels shadowed the Malaysian survey ship West Capella. Malaysian Coast Guard and Navy vessels, however, accompanied the West Capella and protected it until it completed its exploration work. Interestingly, three US warships and an Australian frigate conducted naval drills near the area to lend moral support to the Malaysians. Thus, Malaysia, even without an Arbitral Award and without a Mutual Defense Treaty with a nuclear-armed power, asserted successfully its sovereign rights in its EEZ despite threats and bullying from China.
Last October-November 2021, Malaysia sent its drilling ship to the same area off the coast of Borneo. China warned Malaysia not to proceed with the drilling. Chinese Coast guard vessels harassed the Malaysian drilling ship almost every day. But with the Malaysian Coast Guard and Navy ships protecting its drilling ship, the drilling was completed. China, despite its threats of war and harassment, again failed to stop Malaysia from asserting its sovereign rights in Malaysian EEZ.
In mid-2021, Indonesia sent its drilling ship to drill test wells in its EEZ off the coast of the Natuna Islands facing the South China Sea, within the area encompassed by China’s nine-dash line. China told Indonesia to stop the drilling, and a four-month stand-off ensued between Indonesian Coast guard and Navy ships and Chinese Coast guard vessels. The Indonesians, declaring that they were drilling in an area where they have sovereign rights, proceeded with, and completed their drilling. China failed to stop the Indonesians. Interestingly, the US also sent its aircraft carrier Ronald Reagan near the drilling site to lend moral support to the Indonesians.
Thus, two coastal states, Malaysia and Indonesia, whose EEZs are encroached by China’s nine-dash line, asserted their sovereign rights in their EEZs despite threats of war from China and harassment from Chinese Coast guard vessels. Malaysia and Indonesia successfully asserted their sovereign rights even without an Arbitral Award or a Mutual Defense Treaty with a nuclear-armed state.
In contrast, in April 2022, when China “whispered” to former president Duterte not to cross China’s redline, Duterte slavishly ordered Forum Energy, the Service Contractor in Reed Bank, not to send its survey ship to Reed Bank, which the Arbitral Tribunal had ruled is within Philippine EEZ. Malampaya, which supplies 40% of the energy requirement of Luzon, will run out of gas in 3-5 years. The only possible replacement is Reed Bank. Without Reed Bank, the Philippines will have to import LNG – Liquified Natural Gas – to feed its gas-fired power plants in Luzon. This will send our energy costs, already the highest in Asia, soaring through the roof, burdening the consuming public and driving away potential investors.
Obviously, if we want to keep our energy costs within reasonable levels, and if we want to unburden our people from exorbitant energy costs, we must follow the example of Malaysia and Indonesia in asserting our sovereign rights in our EEZ. This requires political will, which the Duterte administration was in severe deficit of, when dealing with China.
Hopefully, the new Marcos administration will find the courage to exercise the much-needed political will, otherwise Filipinos will be condemned to suffer even higher energy costs than what they are already experiencing today.
– Rappler.com.
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 engañen despojandose el uno al otro por amor que han de consuno' [according to] the Partidas (Part. IV, Tit. XI, LAW IV), reiterating the rationale 'Ne mutuato amore invicem spoliarentur' of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife without benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), 'it would not be just that such donations should subsist, lest the condition of those who incurred guilt should turn out to be better.' So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage."
2. It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion cannot stand the test of scrutiny. It would be to indict the framers of the Civil Code for a failure to apply a laudable rule to a situation which in its essentials cannot be distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a deeply-rooted notion of what is just and what is right would be nullified if such irregular relationship instead of being visited with disabilities would be attended with benefits. Certainly a legal norm should not be susceptible to such a reproach. If there is ever any occasion where the principle of statutory construction that what is within the spirit of the law is as much a part of it as what is written, this is it. Otherwise the basic purpose discernable in such codal provision would not be attained. Whatever omission may be apparent in an interpretation purely literal of the language used must be remedied by an adherence to its avowed objective. In the language of Justice Pablo: "El espiritu que informa la ley debe ser la luz que ha de guiar a los tribunales en la aplicacion de sus disposiciones."58
The jurisprudence on the nullity of donations between the parties of a common-law relationship or exclusive cohabitation or union of a man and a woman without a valid marriage found its way into the present Article 87 of the Family Code.
Given the express prohibition under Article 87 of the Family Code, the RWR executed by Adelita in favor of Eliodoro in respect of the subject property is void.
Proceeding to the third issue, given the nullity of the RWR, is the DoD that Eliodoro executed in favor of Nicxon over the subject property valid?
If the marriage between Eliodoro and Adelita was valid and their property regime was either the ACP or the CPG, the donation would definitely be void pursuant to Articles 98 and 125 of the Family Code, which provide:
ART. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n)
x x x x
ART. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a)
It has been opined that a donation made by the husband, without the consent of the wife, would be subject to attack as a fraudulent alienation, or an alienation impairing the interest of the wife in the conjugal partnership property.59
For onerous dispositions or encumbrances of any community property or conjugal partnership property by a spouse, the written consent of the other spouse or an authority of the court is required. In the absence of such consent or authority, the disposition or encumbrance shall be void; however, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.60
Thus, among married couples wherein the ACP or the CPG is their property regime, the consent of both spouses is required under the Family Code whether the disposition is gratuitous or onerous.
Under a regime of separation of property, pursuant to Article 145 of the Family Code, each spouse shall own, dispose of, possess, administer and enjoy his or own estate, without need of the consent of the other. Understandably, each spouse can donate or alienate onerously his or her own estate without the need of obtaining the other spouse's consent.
Under Article 147 of the Family Code, which covers the exclusive cohabitation of a man and woman as husband and wife without the benefit of marriage or under a void marriage, there is unfortunately no direct prohibition on donation of any property acquired during the cohabitation by one party without the consent of the other.
It is true that Article 147 provides that the property acquired during the cohabitation shall be governed by the rules on co-ownership and pursuant to Article 493 of the Civil Code, in a co-ownership: "Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved[; b]ut the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership."
With Article 493 of the Civil Code as basis, Eliodoro could have alienated onerously or gratuitously his part or share in the subject property to Nicxon without the consent of Adelita, who was half co-owner thereof, and the alienation would have been limited to the half portion allotted to Eliodoro upon termination of the co-ownership or partition.
Even the donation by Eliodoro of the entire subject property to Nicxon, without the consent of Adelita, could produce valid effect under Article 493, which would be limited to his share. The Court, in Bailon-Casilao v. Court of Appeals,61 explained the effect of the sale of the whole property by a co-owner, in this wise:
As earl y as 1923, this Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale [Punsalan v. Boon Liat, 44 Phil. 320 (1923)]. This is because under the aforementioned codal provision [(Article 493)], the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common. [Ramirez v. Bautista, 14 Phil. 528 (1909)]. x x x62
In Paulmitan v. Court of Appeals,63 the Court reiterated that the sale by one co-owner of the property owned in common without the consent of the others did not vest in the buyer ownership over the entire property, but merely transferred to the buyer the undivided share of the seller, making the buyer the co-owner of the subject property.
Consequently, if Article 493 of the Civil Code were to be applied, the donation to Nicxon of the subject property could only affect the one-half share of Eliodoro and the one-half share of Adelita could not have been transferred to Nicxon by virtue of the DoD.
However, Article 493 of the Civil Code cannot supersede, and must yield to, Article 147 of the Family Code, which expressly mandates that: "Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation." The reason for this amendment to Article 14464 of the Civil Code rule, as it is now expressed in the Family Code, is this:
x x x If the parties are allowed to dispose of their shares in said properties like in a true co-ownership, it will destroy their relationship. The Family Code, as already stated, would like to encourage the parties to legalize their union some day and is just smoothing out the way until their relationship ripens into a valid union.65
One eminent civil law expert distinguishes ordinary co-ownership and "special co-ownership" under Article 147 in this manner:
x x x In ordinary co-ownership, a co-owner may validly alienate or encumber his undivided share in the common property without the consent of the other co-owners. This article [(Article 147)] creates an exception in the special co-ownership it recognizes between parties living together as husband and wife.Ꮮαwρhi৷ As long as the cohabitation lasts and the co-ownership exists, no disposition inter vivos of such undivided share can be validly made by one party without the consent of the other.66
Given the above express prohibition of a party to the cohabitation to encumber or alienate by acts inter vivos even his or her share in the property acquired during the cohabitation and owned in common, without the consent of the other party until after the termination thereof under Article 147, then the donation of any property acquired during the cohabitation by one party without the consent of the other can only be but void. The rules on ordinary co-ownership cannot apply to vest validity on the undivided share of the disposing party. The donation is simply void.
If a disposition of a party’s share in the property under special co ownership created by virtue of Article 147 without the consent of the other party is proscribed by law, then, and with more reason, should the disposition of the entire property under such special co-ownership by a party without the other party's consent be considered void as well.
To conclude, while the Court finds merit in Nicxon's contention that the lower courts in the present case erred in finding that the property regime between Adelita and Eliodoro was governed by the ACP as their marriage subsisted until Eliodoro died, the DoD to him of the subject property is, nonetheless, void as this is a prohibited disposition under Article 147 of the Family Code.
A Final Note
Matabuena equalized common-law relationships between a man and a woman, on the one hand, and validly married spouses on the other, in respect of the nullity of donations made between the parties. This case similarly pronounces that the prohibition against a spouse to donate any absolute community property or conjugal partnership property without the consent of the other spouse equally applies to common-law relations or cohabitations of a man and a woman without a valid marriage or under a void marriage.
Xxx."
Jurisprudence -
NICXON L. PEREZ, JR., PETITIONER, VS. AVEGAIL PEREZ-SENERPIDA, ASSISTED BY HER HUSBAND MR. SENERPIDA, RESPONDENT. G.R. No. 233365, March 24, 2021.
Source -
https://lawphil.net/judjuris/juri2021/mar2021/gr_233365_2021.html
Donations
"Matabuena (Matabuena v. Cervantes, 148 Phil. 295 [1971]), EQUALIZED common-law relationships between a man and a woman, on the one hand, and validly married spouses on the other, in respect of the NULLITY OF DONATIONS made BETWEEN THE PARTIES. This case similarly pronounces that the PROHIBITION against a spouse TO DONATE any absolute community property or conjugal partnership property WITHOUT THE CONSENT of the other spouse EQUALLY APPLIES to COMMON-LAW RELATIONS or COHABITATIONS of a man and a woman without a valid marriage or under a void marriage."
Jurisprudence -
NICXON L. PEREZ, JR., PETITIONER, VS. AVEGAIL PEREZ-SENERPIDA, ASSISTED BY HER HUSBAND MR. SENERPIDA, RESPONDENT. G.R. No. 233365, March 24, 2021.
Source -
https://lawphil.net/judjuris/juri2021/mar2021/gr_233365_2021.html
Thursday, July 28, 2022
Plea bargaining in drug cases
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SC Provides Clarificatory Guidelines on Plea-Bargaining in Drugs Cases
July 28, 2022
The Supreme Court, during its En Banc deliberations on Tuesday, July 26, 2022, reaffirmed the primacy and exclusivity of its rule-making power under the Constitution, and guaranteed its precedence in governing over the plea bargaining process in drugs cases.
In the consolidated cases of People v. Montierro, (G.R No. 254564), Baldadera v. People (G.R. No. 254564); and Re: Letter of the Philippine Judges Association Expressing its Concern over the Ramifications of the Decisions in G.R. No. 247575 and G.R. No. 250295 (A.M. No. 21-07-16-SC), the Supreme Court En Banc underscored the stability and independence of the Court and its rule-making power in resolving the conflict between Department of Justice (DOJ) Circular No. 27, which prohibits plea bargaining for illegal sale of dangerous drugs to the lesser offense of illegal possession of drug paraphernalia under Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, and the SC’s Resolution in A.M. No. 18-03-16-SC adopting the Plea Bargaining Framework in Drugs Cases.
Holding that plea bargaining in the prosecution of drugs cases goes into the very matters of fundamental constitutional rights, the Court resolved to clarify the guidelines it earlier issued in A.M. No. 18-03-16-SC, dated April 10, 2018. Hence, while the Supreme Court takes judicial notice of the DOJ’s efforts to amend DOJ Circular No. 27 to conform with the Plea Bargaining Framework in Drugs Cases, the Court nevertheless issues the following guidelinesfor the guidance of both the Bench and the Bar:
Offers for plea bargaining must be initiated in writing by way of a formal written motion filed by the accused in court.
The lesser offense which the accused proposes to plead guilty to must necessarily be included in the offense charged.
Upon receipt of the proposal for plea bargaining that is compliant with the provisions of the Court’s Plea Bargaining Framework in Drugs Cases, the judge shall order that a drug dependency assessment be administered. If the accused admits drug use, or denies it but is found positive after a drug dependency test, then he/she shall undergo treatment and rehabilitation for a period of not less than six (6) months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if the penalty is still unserved. If the accused is found negative for drug use/dependency, then he/she will be released on time served, otherwise, he/she will serve his/her sentence in jail minus the counselling period at the rehabilitation center.
As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.
Though the prosecution and the defense may agree to enter into a plea bargain, it does not follow that the courts will automatically approve the proposal. Judges must still exercise sound discretion in granting or denying plea bargaining, taking into account the relevant circumstances, including the character of the accused.
The court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:
the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or
when the evidence of guilt is strong.
Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.
Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused’s plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.
If the prosecution objects to the accused’s plea bargaining proposal due tothe circumstances enumerated in item no. 5, the trial court is mandated tohear the prosecution’s objection and rule on the merits thereof. If the trialcourt finds the objection meritorious, it shall order the continuation of the criminal proceedings.
If an accused applies for probation in offenses punishable under RA No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Section 24 thereof, then the law on probation shall apply.
The Supreme Court Public Information Office will upload a copy of the Court’s Decision to the SC website once it receives an official copy from the Office of the Clerk Court En Banc. ###
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Source - https://sc.judiciary.gov.ph/28879/
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