Appeals on LTFRB Decisions

LTFRB created under EO 202 provides that the decision, orders or resolution of the Board shall be appealable to the DOTC Secretary 30 days after the receipt of the decision.

Section 1 Rule 43 of the Rules of Court however provides that decisions of or orders of quasi-judicial agencies should be brought to the Supreme Court. Although LTFRB is not among those agencies enumerated in the Rules, the words “among these agencies are” does not mean that the enumerations are exclusive. LTFRB should be covered by these rules.

Is the mode of appeal under EO 202 constitutional?

Aside from a disregard of a provision of law, there are also two basic constitutional principles which were trenched by EO 202:

a) Separation of Powers
- LTFRB is an administrative agency vested with quasi-judicial powers. Its decision must not be appealed to the executive branch of the government but to the appellate courts.

b) Power of judicial review lies with the courts
- EO 202 has the effect of depriving the courts its right to exercise the power of judicial review at first instance over matters within its competence and jurisdiction.

Disinheritance

Disinheritance is the process or act, through a testamentary disposition, depriving in a will any compulsory heir of his legitime for true and lawful causes. 

It can be effected only through a will wherein the legal cause therefor shall be specified.

The ground for disinheritance must be specified in the will. These grounds are enumerated in Art. 919 of NCC (for children), Art. 920 (for ascendants), and Art. 921 (for spouse).

If a compulsory heir is disinherited, the disinheritance does not only cover his legitime but also the free portion, that is, he is completely excluded from the inheritance.

Question of the Day

Suppose the person is not the testator, spouse, descendant, or ascendant, but cousin, can there be, valid disinheritance?

My Singapore Trip

Defense Of A Relative

Aside from unlawful aggression and reasonable necessity to repel the aggression, it is important to note the relationship covered under the circumstances. The person defended is only regarded as a relative within the relationship of 1st cousin. Any relationship farther than this, are regarded as strangers already. If accused acted in defense of a 2nd cousin who is the object of an unlawful aggression, it is already a defense of strangers.

In defense of relatives, there are only two requirements that are must:
(a) Unlawful aggression
(b) reasonable necessity
The third requirement is conditional, if the provocation came to the relative being attacked, that the one making the defense had no part therein.

Observing the relationship is decisive because if defense is no longer defense of relatives but strangers, though there is reasonable necessity on the means emplyed, if the prosecution could prove that the accused was motivated by resentment or evil motive, his act can no longer be justified as a defense of a relative. It will only bring about incomplete justification. It would mean a privileged mitigating only.

On the other hand, if it is properly a defense of relatives, even if the prosecution could prove that he was motivated by evil motive or resentment, that is immaterial because it is not a requisite in defense of relatives.

The Blind Testator

Under the civil code, if the testator is blind, the will shall be read to him twice; once by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

How about if the testator is deaf? Then, there should be no problem because he can read, right? Unless he is also mute, coz he must personally read the will or he shall designate two persons to read it and communicate to him, in some parcticable manner like sign languages, the content thereof.

Objection... Your Honor...

Every week, in my moot court subject, we are trained to object on evidences presented by the adverse party. The rule is – evidence is admitted if not objected to. In the presentation of oral evidence, objections may be made on two occasions, (1) before a witness testifies and (2) while the witness is testifying.

On the first occasion, the testimony of a witness may be objected to on the ground that the proposed testimony is either immaterial, irrelevant or incompetent and such testimony will only waste the time of the court.

On the second occasion, when the witness is already testifying, the objection should be made as soon as the question is asked and before an answer is given.

Objections may be made on the following grounds:

“Objection, Your Honor, it is/the question is – “

- irrelevant
- immaterial to the issue
- incompetent because it is excluded by the rules
- incompetent because it is excluded by law
- calling for the opinion of the witness
- calling for an expert opinion and the witness has not been qualified as such
- leading
- misleading
- too general
- calling for a narration or narrative answer
- vague, ambiguous, or unintelligible
- argumentative
- harassing the witness
- tend to embarrass or degrade the character of the witness
- based on evidence already admitted
- already answered
- not alleged or pleaded as an issue
- not taken-up or touched upon in the direct examination
- assumes facts not yet in evidence
- no basis. It has not been shown that ___________
- the witness is incompetent to testify
- hearsay evidence

It is also important that an adverse counsel move for the exclusion and separation of other witnesses to prevent them from hearing and being influenced by the testimony being given by the witness on stand. So, the adverse counsel must make the following manifesto : “ Your Honor, I move for the exclusion and/or separation of the witnesses present in court today.”


Phrase of the Day

Hostile Witness – one who testifies on a material matter unfavorable to the party who calls him.


Question of the Day

Is this question on direct examination of a hostile witness allowable over proper and timely objection: “Even though you knew you were at fault, you didn’t stop?”

E-VAT

The topic of Value Added Tax has always evaded the BAR. But there are certain things about VAT that are good to know like the new law on E-VAT or RA 9337.

RA 9337 removes the VAT exemption of several formerly exempt sectors of our economy such as
- medical services rendered by professionals
- legal services
- petroleum products, including sale and importation of raw materials for its manufacture
- non-food agricultural
- marine and forest products
- work or art, literary works, musical compositions
- cotton and cotton seeds
- coal and natural gas
- passenger cargo vessel of more that 5000 tons
- generation, transmission and distribution of electricity including that of electronic cooperatives
- sale of residential lot valued at more that P1.5 M.
- sale of residential house and lot/dwellings valued at more than P2.5 M
- lease of residential unit with a monthly rental of more than P10,000.

For the year 2005, the rate remains at 10% but it maybe increased to 12% starting year 2006 when certain conditions are met.

Sale of goods and services to government is subject to 10% VAT under the Tax Code. Further, before making payments to suppliers, government agencies acting as withholding agents are required to deduct and withhold a final VAT due at the rate of 5% of the gross payments thereof.

This act was implemented on November 1, 2005.

Actions and Venue

I will have my prelim exam on Remedial Law Tonight. The coverage are Jurisdiction, Barangay Conciliation, and Rules 1 to 14. So wish me luck...

Some pointers:

Splitting of causes of action - It is the practice of dividing one cause of action into different parts and making each part the subject of a separate complaint. The filing of the first may be pleaded in abatement of the other or others and a judgment upon the merits in any one is available as a bar to the others.

On the question of venue, it is well settled that the question on venue must not be be;atedly raised, otherwisw, it is deemed waived. Improper venue should be objected to as follows:
(a) in amotion to dismiss filed within the time but before the filing of the answer.
(b) in the answer as an affirmative defense over which, in the discretion of the court, a preliminary hearing may be held as if a motion to dismiss had been filed.


Question of the Day
May the trial court motu propio dismiss a complaint on the ground of improper venue?

Outline on Jurisdiction

I. SUPREME COURT
A. Original:
1. Exclusive
Petitions for issuance of writs of certiorari, prohibition and mandamus against the following:
a. Court of Appeals
b. Commission on Elections
c. Commission on Audit
d. Sandiganbayan
2. Concurrent (with the Court of Appeals)
Petitions for issuance of writs of certiorari, prohibition and mandamus against the following:
a. National Labor Relations Commissions under the Labor Code (Sec. 9, BP129 as amended by RA 7902; St. Martin FH v NLRC, 295 S 494). However, petitions should be filed with the CA
b. Civil Service Commission
c. Central Board of Assessment Appeals
d. Court of Tax Appeals and Quasi-Judicial Agencies
e. Regional Trial Courts and lower courts
f. Petition for writ of habeas corpus and quo warranto
g. Lower courts or bodies (with RTC)
h. Actions affecting ambassadors and other public ministers and consuls.
B. Appellate
1. Notice of Appeal:
a. From RTC or Sandiganbayan in all criminal cases involving offenses for which the penalty imposed is reclusion perpetua, life imprisonment or death, and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion.
Example: People v. Plateros, 83 S 401
b. Automatic review in criminal cases where the death penalty is imposed by the RTC or Sandiganbayan.
2. Petition for review on certiorari
a. Appeals from the CA
b. Appeals from the Sandiganbayan on pure questions of law
Example: cases where penalty imposed is reclusion perpetua, life imprisonment or death
c. Appeals from the RTC exercising original jurisdiction in the following cases:
1. If no question of fact is involved and the case involves:
· Constitutionality or validity of treaty, international or executive agreement, law, PD, proclamation, order, instruction, ordinance or regulation
· Legality of tax, impost, assessment, or toll, or penalty in relation thereto
· Jurisdiction of lower court.
2. All cases in which only errors or question of law are involved.
3. Special Civil Action of certiorari filed within 30 days
· Commission on Elections
· Commission on Audit

II. COURT OF APPEALS
A. ORIGINAL
1. Exclusive
Actions for annulment of judgments of RTC
2. Concurrent (with SC)
- see I-A2 (a-e)
(with RTC)
- see I-A2 (f and g)

B. APPELLATE
1. Writ of Error
a. Appeals of RTC
Exception: those appealed to the SC
b. Appeals from RTC on constitutional, tax, jurisdictional questions involving questions of fact which should be appealed first to the CA.
c. Appeals from decisions and orders of the Family Courts
2. Petition for Review
a. Appeals from Civil Service Commission
b. Appeals from RTC in cases appealed from MTC, Metropolitan Trial Court, MCTC, which are not a matter of right.
c. Appeals from CTA (there's as new law on this, ill post it later) and quasi-judicial agencies:
· Central Board of Assessment Appeals
· Securities and Exchange Commission
· Office of the President
· Land Registration Authority
· Social Security Commission
· Civil Aeronautics Board
· Bureau of Patents, Trademarks and Technology Transfer
· National Electrification Administration
· Energy Regulatory Board
· National Telecommunications Commission
· Department of Agrarian Reform under RA 6657
· Government Service Insurance System
· Employees Compensation Commission
· Agricultural Inventions Board
· Insurance Commission
· Philippine Atomic Energy Commission
· Board of Investments
· Construction Industry Arbitration Commission
· Voluntary arbitrators authorized by law
d. Appeals from the National Commission on Indigenous People
e. Appeals from the Ombudsman in administrative disciplinary cases.


III. SANDIGANBAYAN
A. ORIGINAL
1. Exclusive
a. Violations of
· RA 3019 (Anti-Graft and Corruption)
· RA 1379 (Forfeiture of Unlawfully Acquired Properties)
· RPC, Chap II, Sec. 2, Title VII
b. Other offenses committed by public officials and employees in relation to their office, and private individuals charged as co-principals, accomplices, and accessories including those employed in government owned or controlled corporation where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity at the time of the commission of the offense:
- Officials of executive branch classified as Grade 27 or higher
- Members of Congress
- Members of the Judiciary
- Members of Constitutional Commissions
- All other national and local officials classified as Grade 27 and higher
c. Civil and criminal cases filed pursuant to and in connection with:
- EO Nos. 1,2,14 and 14-A
- Sec. 2 of RA 7975 as amended by RA 8249
2. Concurrent with the SC
- Petitions for certiorari, mandamus, habeas corpus, injunctions and other ancillary writs in aid of its appellate jurisdiction, including quo warranto arising in cases falling under EO 1,2,14 and 14-A.

B. Appellate – decisions and final orders of RTC in the exercise of the original or appellate jurisdiction under PD 1606, as amended.


IV. REGIONAL TRIAL COURTS

A. Original
1. Civil
a. Exclusive
1. Subject of action not capable of pecuniary estimation (e.g. specific performance, rescission of contract)
2. Actions involving title or possession of real property or interest therein where the assessed value exceeds P20,000 or in Metro Manila P50,000
Except:
Forcible Entry and unlawful detained (with inferior courts)
3. Actions in admiralty and maritime jurisdiction where demand or claim exceeds P300,000 or in Metro Manila P400,000
4. Matters of probate, testate or intestate, where the gross value exceeds P300,000 or in MM P400,000
5. Actions involving marriage and marital relations
6. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial function
7. Actions and special proceedings falling within exclusive jurisdiction of Juvenile and Domestic Relations Court and of Court of Agrarian Relations
8. Other cases where demand exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or value of property in controversy exceeds P300,000 or in MM P400,000.

· Additional jurisdiction under Sec. 5.3 of Securities Regulation Code:
- Fraudulent devices or schemes of board or officers
- Intra-corporate controversies
- Election or appointment controversies
- Suspension of payments and corporate rehabilitation

However, if the claim for damages is the main cause of action, the amount thereof shall be considered in determining the jurisdiction of the court.

b. Concurrent
- with the SC
1. Actions affecting the ambassadors and other public ministers and consuls
- with SC and CA
1. Certiorari, prohibition and mandamus against the lower courts and bodies
2. Habeas Corpus and Quo Warranto
- with the Insurance Commission
Claims not exceeding P100,000. Applicable if subject is not capable of pecuniary estimation. Otherwise, jurisdiction is concurrent with MTC, etc.

NOTE: Guardianship and adoption cases are now under the exclusive original jurisdiction of the Family Courts established by RA 8369.

2. Criminal
A. Exclusive:
- Criminal cases not within exclusive jurisdiction of any court, tribunal or body.
These include criminal cases where the penalty by law exceeds six (6) years imprisonment irrespective of fine. These also include criminal cases not falling under within the exclusive original jurisdiction of the Sandiganbayan where none of the accused is occupying the positions corresponding the salary grade 27 and higher.
But in cases where the only penalty provided by law is a fine, the RTC have jurisdiction if the amount of the fine exceeds P4,000.

NOTE: Family Courts have exclusive original jurisdiction over criminal cases where one or more of the accused is below 18 but not less than 9 or when one or more the victims is a minor at the time of the commission of the offense.

B. Appellate
- All cases decided by lower courts (MTC, etc.) in their respective territorial jurisdictions.


V. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS

A. Original
1. Civil
a. Exclusive
- actions involving personal property valued at not more than P300,000 or in MM P400,000
- actions demanding sums of money not exceeding P300,000 or in MM P400,000, in both cases, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, amount of which must be specifically paid.
These includes admiralty cases
- actions involving title or possession of real property where the assessed value does not exceed P20,000 or in MM P50,000
- provisional remedies in principal action within their jurisdiction, and I per cases, such as preliminary attachment, preliminary injunction, appointment or receiver, and delivery or personal property
- forcible entry and unlawful detainer with jurisdiction to resolve issue of ownership to determine issue of possession
- probate proceedings, testate or intestate, where gross value of estate does not exceed P300,000 or in MM P400,000
- inclusion and exclusion of voters
b. Concurrent with RTC - none
c. Delegated
- Cadastral and land registration cases assigned by SC where there is no controversy or opposition and in contested lots values at not more than P100,000
d. Special
- Petition for habeas corpus in the absence of all RTC judges.

2. Criminal
Exclusive
- All violations of city or municipal ordinances committed within their respective territorial jurisdiction
- All offenses punishable with imprisonment of not more than 6 years irrespective of their fines and regardless of other imposable accessory or other penalties and the civil liability arising therefrom; provided however, that in offenses involving damage to property through criminal negligence, they shall have original jurisdiction
- Offenses committed not falling within the exclusive original jurisdiction of the Sandiganbayan where none of the accused are occupying positions corresponding to salary grade “27” and higher
- In cases where the only penalty provided by law is a fine not exceeding P4,000.
b. Concurrent (with Fiscals and State Prosecutors)
Except MTCs in NCR, conduct preliminary investigation of crimes punishable by at least 4 years, 2 months, 1 day without regard to the fine. Preliminary investigation of crimes within the jurisdiction of the Sandiganbayan is conducted by the Office of the Special Prosecutor under the Ombudsman.

c. Special
Application for bail in the absence of RTC judges.

3. Summary Procedure
a. Civil
- Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered
- All other cases, except probate proceedings, where the total claim does not exceed P10,000

b. Criminal
- Traffic violations
- Rental laws violations
- Violations of city or municipal ordinances
- All other cases where penalty does not exceed 6 months and/or fine of P1,000

RA 6389
- created by the Family Courts
- cases are the exceptions to the cases under the jurisdiction of inferior courtsi.e. child abuse, regardless of the amount of damages, domestic and conjugal cases

My Moot Court Case - Malversation

The facts of the case are these:

There is this accountable officer who is in charge of selling meat to a marginalized sector of society. She sells meat to them at P50 per kilo only whereas the prevailing market price of the meat was about P100 per kilo. However, one day, she was not able to sell all her meat at the place designated by her office because of bad weather condition. So, she decided to sell them to other persons instead at the same price of P50 per kilo. Further, she sold them at credit whereas her instructions were to sold them for cash and deposit the proceeds to a bank. So, when an audit was conducted, the auditor found that she was short of P15,000. In her defense, she showed promissory notes evidencing that she sold them on credit.

As prosecutors in this moot case, we filed a malversation case against the accountable officer. As of today, we have already rested the prosecution’s case by offering the testimonies of our witnesses and other documentary exhibits. It is now up to the defense to present their side.


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

x x x x x x x x x

The failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.
The elements of malversation, essential for the conviction of an accused under the above penal provision are:

1. That the offender is a public officer;
2. That he has the custody or control of funds or property by reason of the duties of his office;
3. That the funds or property are public funds or property for which he is accountable; and
4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them.



Word of the Day

Negligence – failure to exercise that degree of care which a person of ordinary prudence would exercise under the same circumstances.

Question of the Day

Can a private person be guilty of malversation?

Are You In Favor Of Divorce?

Divorce is dissolution of bonds of marriage. It is not a punishment for a wrong done by one spouse to the other, but it is the result of the determination by the state of domicile that the continuation of the marital relationship between the parties concerned will be contrary to the policy of law. While a divorce puts an end to the marital relation, it does not relate back to the act of marriage and render it null and void. It is based upon the theory of invalid marriage for some cause arising after the marriage ceremony.

At present, our country do not practice absolute divorce, we only have legal separation and annulment of marriage. In legal separation, the marriage bond is not dissolved and the parties are not entitled to remarry, the parties are merely separated from bed and board. Annulment of marriage on the other hand, relates back and erases the marriage and all its implications from the outset on the theory that for some reasons existing at the time of marriage no valid marriage existed. Annulment dissolves the marriage bond and the parties are allowed to remarry again.

In the United States and other countries that practice divorce, a pure no-fault divorce concept is followed. This means that a divorce is granted without the necessity of finding a spouse to have been guilty of some marital misconduct. The most common “no-fault” ground is voluntary separation for a period of time The Uniform Marriage and Divorce Act of the United States allows for divorce unilaterally upon the application by either spouse without proof of marital misconduct and without a mandatory waiting period either before or after the divorce is decreed.

In Philippine law, whether it is an annulment of marriage or legal separation, there had to be a specified fault, a wholly innocent plaintiff spouse and a wholly guilty or aggressor defendant spouse. There must be a proof of marital misconduct as a prerequisite for the case.

The Family Code of the Philippines lists seven grounds for the annulment of marriage. These grounds must exist at the time of the celebration of the marriage. Article 45 of the Family Code lists them as non-age unsoundness of mind, fraud, impotence, incurable sexually transmitted disease and the use of force, intimidation or undue influence. Another ground for annulment is stated in Article 44 of the same Code which states that if both spouses of a subsequent marriage acted in bad faith, the said marriage shall be void ab initio.

Non-age refers to a contracting party who is below eighteen years of age, or if the party is eighteen years of age or over but below twenty one, the marriage was solemnized without the consent of the parents, guardian or persons having substitute parental authority over the party. Unsoundness of mind refers to lack of mental capacity the law requires for making of a will. Fraud refers to concealment of a guilty party of his or her previous conviction of a crime involving moral turpitude, pregnancy by another man, sexually-transmitted disease, drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of marriage. Force, Intimidation or Undue Influence refers to violence, threat or control over one’s will. Impotency refers to lack of power of copulation and not to mere sterility. Incurable sexually transmitted disease includes AIDS, herpes, syphilis, gonorrhea, hepatitis and the like.

There are ten grounds for legal separation under article 55 of the family Code. These are repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of a petitioner, to engage in prostitution, or connivance in such corruption or inducement; Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; Drug addiction or habitual alcoholism of the respondent; Lesbianism or homosexuality of the respondent; Contracting by the respondent of a bigamous marriage, whether in the Philippines or abroad; Sexual infidelity or perversion; Attempt by the respondent against the life of the petitioner; And abandonment of petitioner by respondent without justifiable cause for more that one year.

Conjugal properties of the spouse are always in question when we deal with annulment or legal separation and/or divorce. What will happen to the properties that a husband or wife acquired by their joint efforts during the marriage. Some refers to it as a question of who gets what? Sensational divorce cases in the United States involve multi-million dollar rewards for damages of the aggrieved party.

The effects of annulment on properties is laid down in Article 50 to 52 of the Family Code which states that final judgment on the nullity of the marriage shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of the children’s presumptive legitimes computed as of the date of the final judgment of the court.

The effects of legal separation on properties is embodied in Article 63 of the Family Code which states that the absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership. Further, the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.

The effects of divorce on properties is embodied in United State’s Civil Law and in American Law of Property which states that all properties owned at the time of marriage, or that acquired by gift, devise, bequest, or descent, and the rents and profits therefore is considered separate property. All other acquisitions arising from the earnings of either husband or wife during marriage constitute community property. Community property shall be distributed upon dissolution of marriage. In equitable distribution of properties, the court does not necessarily divide the property equally, but attempts to make a fair and just allocation taking into account such factors as length of marriage, ages of participants, earning capacities, etc.

Although divorce is not practiced here in the Philippines, with respect to properties however, a divorce obtained by a foreign husband against a Filipina wife, which is valid in the country of the husband, is valid and binding against the latter and he is estopped from asserting his rights over property held in the Philippines as a conjugal property by him and his former wife.

The welfare and status of children also imposes a lot of concerns. What will happen to the children and what will be their status under annulment, legal separation and or divorce?

In an annulment case, Article 49 to 54 of the Family Code states that in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the custody and support of the common children. The court shall give paramount consideration to the moral and material welfare of the said children and their choice of the parent with whom they wish to remain. Visitation rights shall also be granted to the other parent. Upon final judgment, the custody and support of the common children and the delivery of the children’s presumptive legitimes are computed as of the date of the final judgment of the court. The children or their guardian, or the trustee of their property my ask the court for the enforcement of judgment. Children conceived or born before the judgment of annulment or absolute nullity of the marriage has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage shall likewise be legitimate.

In a legal separation, Article 63 of the Family Code states that the custody of the minor children shall be awarded to the innocent spouse. And since the marriage is not dissolved in legal separation, the common children shall still be legitimate.

In divorce, custody of children and child support always accompanies divorce. Custody of children is the care and control of minor children awarded by the court to one parent in a divorce proceeding. Where parents both make application for joint custody, and circumstances render the arrangement feasible, some courts have awarded custody to both parents so that responsibility for the children is shared. Under a joint custody order, each parent assumes custody of the children for a fixed period, such as for six months or for the school year or for the summer vacation. Custody must be so awarded as to promote the child’s best interest. Child support is a distinct obligation that may be imposed by the court upon the spouse with or without an award of alimony and is an amount of money which the court requires one spouse to pay to the other who has custody of the children born of the marriage. The amount of child support may be altered as changed circumstances may warrant. A spouse who fails to pay child support may be held in contempt by the court and jailed until past due amounts are satisfied.

A question of divorce in the Philippines is always a moral issue. It has been the firm stand of our Church that they are against any law that will violate the sanctity of marriage. The Church strongly believes that what God has put together, no man should separate. Marriage is a solemn activity, thus inviolable. When the contracting parties exchanged matrimonial vows, they agreed that they would live together as husband and wife, in sickness and health, through trials and success, through better and worse, till death part them. Most of marital problems encountered today are that they do not lift their marriage to the grace and mercy of the Lord, and they do not seek the religious guidance in the conduct of their affairs. Some of them even do not attend mass. The church believes that with their guidance, the husband and wife can live together happily, observe mutual respect and fidelity to each other and render mutual help and support each other, the very bonds and duties enunciated in their marriage vows.

The Church believes that divorce is not the solution to marital problems. Further, divorce will be a threat to its sanctity because if a divorce law shall be enforced, then marriage will lose its sacredness and a contract of marriage will then just be an ordinary agreement similar to that of buying and selling a property, always negotiable and always discretionary.

But how does the Church react to marital violence and abuse? The Church believes in reconciliation and saving the marriage, outreach programs for the revitalization of marriage is always conducted by the church and other religious affiliations such as Couples for Christ, Love Flock, Charismatic Groups and the likes. The Church believes that if only a married couple adheres to the principles of the Church, adheres to a married life devoted to Christ, and live together in peace, respect and harmony, then, marital violence can be prevented. But in serious cases however, when a spouse, despite all his or her Godly effort prove to be futile, and still, violence and abuse reigns in the family, then, the Church advices the aggrieved party to temporarily not to cohabitate with his or her partner until such time that the aggressor is rehabilitated.

Majority of Feminist Groups in our country however, lobbies for the adoption of divorce law. Their contention is that the protection of woman involved in domestic violence or abuse in marriage should be the primary consideration. They claim that there is no satisfactory law that protects these women victims and that divorce will greatly help their cause in minimizing, if not stopping, the plight of these victims.

But why do we need divorce? Is the annulment of marriage and the legal separation laws not enough? Feminists groups such as Gabriela, Kalakasan Foundation and Women’s Crisis Center believe that these laws are not satisfactory enough to protect the victim. The annulment proceeding is very costly and we even have a law that suspend and/or delay the hearings. Further, a period of five years is required for the annulment of marriage. On the other hand, legal separation is disadvantageous to women because it prohibits them to remarry again, thus preventing them to have a new lease of life and to pursue a dream of having another loving family life.

The Church and majority of the feminists groups seem to have a contrasting view on divorce. But how does our society perceived divorce? Are they in favor of it? When asked about this question, most of the persons seem to have varying outlook and tend to answer this by what is convenient in their case. Most married respondents seem to be not in favor of divorce contending that most marital problems can be solved, and permanent separations such as divorce will only have detrimental effect to the family in the long run. If there is a slightest problem or disagreement, the parties might resort against reconciliation and go with divorce - an action that both of them might regret in the future.

Other respondents, who are separated from their spouse, either legally or not, seem to agree with divorce. However, most are unaware between the distinctions of divorce against legal separation and annulment. They perceive divorce as a legal way for them to be permanently separated from their partner, whether they have an intention of marrying another or not.

Single, unmarried respondents seem to give diverse answers. Some of them agree with divorce contending that the law of the land should move with the advancement of society. Since we are moving in a fast-paced society, what we perceived to be old-fashioned concept of a family must evolved. Most of them relates divorce with equality of sexes and that a woman should have the right to seek divorce if couples have irreconcilable differences. Some of them however are still not in favor of divorce citing that the sanctity of marriage is what makes the family closely-knitted. And that a person should be careful of who to marry and who to spend the rest of their lives with.

Based on the facts and opinions I have gathered above, I am now ready to give my opinion of whether I am in favor of divorce? I am not in favor of divorce. Marriage to me is sacred. Marriage is not supposed to be a business deal where we can say, “I don’t like the way things are going and so I am not doing business with you.” It is supposed to be a commitment – in sickness and in health. It is not always “for the better”. There are days when it is going to be “for the worse”. There could come a day when the person you married because he was wonderful, tall, dark and handsome develops prostate cancer and all the physical and mental things you like about him disintegrates before your very eyes. The real challenge with marriage is to be prepared to love and walk through life with someone as imperfect as you are.

But how about if marriage is filled with violence and abuse? Are you still not in favor of divorce? News about women beaten-up and abused by her husband is rampant today. Almost everyday, we read or saw in news a woman killed or injured by somebody who says he loves her. So I am against that, I would never encourage a woman to stay committed to a relationship where she is being physically abused. Even if the abuse is emotional, you may have to distance yourself from the relationship and urge your spouse to get counseling or go to the rehab. Abuse is literally abnormal use and you should not set yourself up for that. I believe in this case that a spouse abused should resort to legal separation because legal separation is reversible, that is, if your spouse has been counseled, changed, corrected or rehabilitated, then you can live again as husband and wife. You have married him or her once, so I believe that you have loved him or her. But if the erring spouse in incorrigible, then you can devote your time in rearing of your children or helping other victims of the community.

All these things considered, the passing of the bill on divorce rests primarily on our legislators. If divorce is to be adopted in the Philippines, the legislature must see to it that the sanctity of marriage will not be violated and the caprices of contracting parties to treat marriage as an ordinary contract must be specifically prohibited. The United States concept of divorce, a pure no-fault concept, should be carefully deliberated and studied if our divorce law shall be patterned into it. And most importantly, the welfare of women and children must be the primary consideration of the state in enacting such law.

If divorce however is not to be adopted here in the Philippines, our present laws on annulment and legal separation must be improved. A lot of victims of marital abuses claim that there is no satisfactory law that protects them. If the preservation of the sanctity of marriage is the sole reason why divorce should not be adopted here, then considerations must also be made by the State to protect the life of the abused in marital violence. The state must not only adopt or introduce new laws for those who wanted to get out of incorrigible marriages but must create new programs that will help the cause of the victims of marital violence and abuses.

All About Properties (Part 2)

The preliminary examination in my Civil Law Review subject was given last night. There are just six questions all of which deals with Properties.

Now to continue on the topic of Properties...

Easement

An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.

Dominant Estate – the immovable in favor of which the easement is established; land that benefits from easement on another (usually adjacent) property

Servient Estate – one which is burdened with a servitude

Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong.

Classes as to recipient of benefit
Real easement – when it is in favor of another immovable
Personal easement – when it is in favor of a community, or one or more persons to whom the encumbered estate does not belong

Only immovables may be burdened with easements. There can be no easement imposed on personal property.

Classes as to its exercise:
Continuous easements – those the use of which is or may be incessant (continuing w/o interruption), without the intervention of any act of man.
Discontinuous – those which are used at intervals and depend upon the acts of man.
Apparent – those which are made known and are continually kept in view by external signs that the reveal the use and enjoyment of the same.
Non-apparent – those which does not show external indication of their existence.
Positive – those which impose upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself.
Negative – those which prohibit the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

Rules on acquisition of easement by prescription:
(a) if the easement is positive – begin counting the period from the day the dominant estate began to exercise it.
(b) If the easement is negative – begin counting from the time notarial prohibition was made on the servant estate.

Rights and Obligations of the Owners of the Dominant and Servient Estates:

Rights of the Dominant Estate:
(1) To exercise the easement and all necessary rights for its use including accessory easements.

(2) To make on the servient estate all works necessary for the use and preservation of the servitudes , BUT –
- this must be at his own expense
- he must notify the servient owner
- select convenient time and manner
- he must not alter the easement nor render it more burdensome
(3) To ask for a MANDATORY INJUNCTION to prevent impairment or obstruction in the exercise of the easement as when the owner of the servient estate obstructs the right of way by building a wall or fence.
(4) To RENOUNCE totally (for an easement is indivisible) the easement if he desires exemption from contribution to expenses.

Obligations of the Dominant Estate:
(1) He cannot alter the easement
(2) He cannot make it more burdensome
(3) If there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the BENEFITS received by each estate (and not in proportion to the VALUE of each estate). In the absence of proof, we should presume the benefits to be equal.
(4) Regarding the making of repairs, it must be at his own expense.

Rights of servient estate:
(1) To retain ownership and possession of the portion of his land affected by the easement even if indemnity for the right is given unless the contrary has been stipulated.
(2) To make USE of the easement, unless deprived by the stipulation provided that the exercise of the easement is not adversely affected and provided further that he contributes to the expenses in proportion to BENEFITS received, unless there is a contrary stipulation.
(3) To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant estate.

Obligations of the servient estate:
(1) He cannot impair the use of the easement.
(2) He must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation.
(3) In case of impairment, to restore conditions to the status quo at his expense plus damages.
(4) To pay for the expenses incurred for the change of location or form of the easement (in the proper use).

Modes of extinguishing easements:
(1) By merger in the same person of the ownership of the dominant and servient estate.
(2) By non-user for ten years; discontinued easements – this period shall be computed from the day on which they ceased to be used; continuous easement – from the day on which an act contrary to the same took place.
(3) When either or both of the estates fall into such condition that the easements cannot be used. Bad condition of the tenement or impossibility of use.
(4) By expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional.
(5) By the renunciation of the owner of the dominant estate.
(6) By the redemption agreed upon between the owners of the dominant and servient estates.

Donations

Donation inter vivos; its characteristics

In Magat vs CA, et al GR No. 106755, Feb 1, 2002, there was an irrevocable donation in favor of the children by the mother. It however provided that it cannot be encumbered, alienated or sold and that the property shall remain in the possession of the donor while she is alive and that the donation shall take effect after her death.

Donation mortis causa; its characteristics

In Magsalang, et al vs The Heirs of Corazon Cabatingan, et al GR No 131953, June 5, 2002, (Austria-Martinez), a donation was made in consideration of the love and affection of the Donor for the Donee” xxx “ it became effective upon the death of the Donor provided that in the event the Donee should die before the Donor, the present donation shall be deemed automatically rescinded and of no force or effect.” It was contended that the donees through machination and strategies and taking advantage of the fragile condition of the donor, caused the execution of the deed. It was further contended that the formalities of a will were not complied with considering that the donation was one of a donation mortis causa. The donees contended otherwise saying that the donor knew fully well the preparation of the document. The lower court ruled it to be one of mortis causa. The donees contended on appeal that it was inter vivos considering that the donation was done in consideration of the love and affection of the donor to the donee. The stipulation on rescission in case donee predeceased the donor was considered by them as a resolutory condition that confirms the nature of the donation inter vivos.

The Supreme Court held that the donation is one of a donation mortis causa.

In a donation mortis cause, “the right of disposition is not transferred to the donee while the donor is still alive.” (Sicad vs CA, 294 SCRA 183). In determining whether a donation is one of mortis causa, the following characteristics must be taken into account:

1. It conveys no title or ownership to the transferee before the death of the transferor, or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

2. That before the his death, the transfer should be revocable by the transferor at will, ad nutum, but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

3. That the transfer should be void if the transferor should survive the transferee.

The nature of the donation as mortis causa is confirmed by the fact that the donation does not contain any clear provision that intends to pass propriety rights to petitioners prior to Cabatingan’s death. (Reyes vs Mosqueda, 187 SCRA 661; Bonsanto vs CA 95 Phil 481). The phrase “to become effective upon the death of the Donor” admits of no other interpretation but that the donor did not intend to transfer the ownership of the properties to petitioners during her lifetime. The donees themselves expressly confirmed the donation as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit:

“That the Donee does hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of the Donor.”

-and-

Signed by the above-named Donor and Donee at the foot of this Deed of Donation mortis causa, which consists of two (2) pages xxx.”

That the donation was made “in consideration of the love and affection of the donor” does not qualify the donation as inter vivos because transfers mortis causa may also be made for the same reason.

Nuisance

A nuisance is any act, omission, establishment, business, condition of property, or anything else witch:

1) Injures or endaangers the health or safety of others; or

2) Annoys or offends the senses; or

3) Shocks, defies or disregards decency or morality; or

4) Obstructs or interferes with the free passage of any public highway or stret, or any body of water; or

5) Hinders or impairs the use of property.

Kinds - public and private

Remedies:

1) A prosecution under the RPC or any local ordinance; or

2) A civil action; or

3) Abatement, without judicial proceedings.

Question of the Day

(Lifted from my exam last night)

In what case citation is the doctrine of self-help in property law recognized? Explain.

All About Properties (Part 1)

Our preliminary examination on Civil Law Review with topic on Properties shall be given tonight. The subject of properties are divided into the following topics:

- Classification of Properties
- Accession
- Quieting of Title
- Co-ownership
- Possession
- Usufruct
- Easement
- Donations
- Nuisance


Properties may be classified as follows: As to -
a) nature/mobility and non-mobility - immovable or movable
b) ownership - private ownership or public dominion
c) alienability - within the commerce of man or outside the commerce of man
d) existence - present or future property
e) materiality or immateriality - tangible/corporeal or intangible/incorporeal
f) dependence or importance - principal or accessory
g) capability of substitution - fungible or non-fungible
h) nature of definiteness - generic or specific
g) whether in custodia legis or free property

On the topic of accession, the following lectures might help:

Immovables
Forms of Natural Accession:
a) Alluvium - is the soil deposited or added to the land adjoining the banks of the rivers which they gradually receive as an effect of the current of the waters. To the owners of the land adjoining the bank of the rivers belong the accretion which they gradually receive from the effects of the current of the river. (Note: Registration of the accretion must be sought, otherwise it may be lost thru prescription.)

b) Avulsion - is the process whereby the current of a river, creek or torrent segregates from an estate on its bank known portion of land and transfer it to another estate. (Note: The land still belongs to the owner of the estate to which the segregated portion belong, provided he remove the same within two years.)

c) Change of course of a river - River bed which are abandoned through the natural change of course of a river, ipso facto, belong to the owners whose lands are occupied by the new course in propertion to the area lost. (Note: The term "in proportion to the area lost" has no application if there is only one owner. Such that if A owns the land which is the new river bed, he alone and no other will benefit in the abandoned river bed.)

d) Formation of islands - due to the branching of a river. Same owner which may either be by isolation or separation.

Movables
Principle - The accessory thing follows the principal object.
Tests - (a)intention; (b) value; (c) greater in volume;and (d) merit

Quieting of Title
An action to quiet will prosper when the following requisites are present:
a) Existence of an instrument or record or claim or encumbrance or proceeding;
b) The document appears to be valid or effective;
c) But the document is in truth and in fact, invalid, ineffective, voidable or unenforceable; and
d) The document is prejudicial to the title.

Co-Ownership
Ownership on an undivided thing or right belongs to two or more persons.
Characteristics - Plurality of subjects, unity of objects, co-owner has no separate and distinct legal personality from co-owners, no particularity of portion, creation for collective enjoyment.
Nature - it has the nature of a trust.

Possession
Holding of a thing or enjoyment of a right.

Outline of the effects of possession in good faith and possession in bad faith.

a) Fruits received
1. Possessor in GF -entitled to fruits received while possession is still in GF.
2. Possessor in BF - shall reimburse fruits received of which legitimate possessor could have received subject to Art. 443.

b) Pending fruits
1. PGF and legitimate possessor shall be liable for expenses of the cultivation and shall share in the net harvest in proportion to the time of their possession.
2. PBF - no rights

c) Charges
1. Possessor whether in GF or BF and legitimate possessor shall share in proportion to the time of their possession.

d) Expenses
Necessary expenses
1. PGF - right of reimbursement and retention
2. PBF - right of reimbursement only

Useful expenses
1. PGF - right of reimbursement, retention and limited right of removal
2. PBF - no right

Ornamental expenses
1. PGF - limited right of removal
2. PBF - limited right of removal

e) Deterioration or loss
1. PGF - no liability, unless due to his fault or negligence after he had decome PBF
2. PBF - always liable, whether due to his fault or negligence or due to fortuitous event

Usufruct
Concept - Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

Obligations of the usufructuary:

At the commencement of the usufruct:
1. to make an inventory report
2. to give the necessary security

During the pendency of the usufruct:
1. to take care of the property as a good father of a family
2. to make ordinary repairs on the property
3. to notify the owner in case the need for extraordinary repairs on the property is urgent
4. to pay the annual charges and taxes and those considered as a lien on the fruit
5. to notify the owner of any act of a third person that may be prejudicial to the right of ownership
6. to pay the expenses, costs and liabilities in suits with regard to the usufruct

Upon termination of the usufruct:
1. to deliver the thing to the owner, without prejudice to the right of retention pertaining to him or to his heirs for taxes and extraordinary expenses which should be reimbursed

Usufructuary's right of reimbursement:
1. The usufructuary shall have the right to demand reimbursement from the owner of all necessary expenses which might have incurred for the preservation of the property.
2. The usufructuary is not entitled for reimbursement of useful and ornamental expenses, but he may remove improvements provided that it is possible to do so without damage to the property. In addition, he may set-ff such improvements against damage to the same.

... to be continued

Negotiable Instrument

Today I have answered multiple choice questions on Negotiable Instruments Reviewer by RM Harina and I got 68 out of 90 questions right or a rate of 76%. I took the exam for one hour only and majority of my incorrect answers are on the topics of warranties of qualified endorsement and questions on acceptance. Guess I have to review more. Also, I have to be more careful in answering specially those tricky ones.


Phrase of the Day

Check Kiting - a procedure whereby checks written on accounts in separate banks are used to generate short-term purchasing power through the use of bank's credit.


Question of the Day

Is the following instrument negotiable?:

Please pay to Jose Santos or bearer the sum of P60,000.

(Sgd) Pedro Gil

Barangay Justice Process

In civil cases, there must be reference of the dispute to the barangay for conciliation and mediation, previously governed by PD 1508 but now under the Local Government Code.
“ No complaint or petition shall be filed in court without going through barangay conciliation” is a mandatory requirement in civil disputes:

1.The parties involved must be natural persons. Judicial persons cannot apply.
2.The parties of the controversy must be residing in the same city/municipality.
EXCEPTIONS: They are residents of adjoining barangays and they agree to the barangay justice process.
3.Real properties subject of dispute are located or situated in the same city/municipality where the parties reside.

SC Circular 1493 – admonishing clerks of courts not to accept a case without certification from the barangay secretary on conciliation/mediation undergone by the parties. If there was conciliation/mediation, failure to yield positive results.

Instances when the law allows direct filing in court even if under the requirement of barangay conciliation:
Involves a public officer and the dispute refers to the performance of his public function.
Case calls for any provisional remedy.
When the cause of action is about to prescribe.
When the controversy involves the liberty of a person who is being held in custody of another calling for writ of habeas corpus.
Under these instances, the parties are allowed to file the case directly in court because time is of the essence.

With the clogging of cases in the dockets of the courts, alternative dispute resolutions are being resulted to. The barangay, where one of the parties resides shall be the venue of the case of the katarungang pambarangay. If the subject of the dispute is a real property, the venue is the barangay where it is situated. If said real property is situated in two adjoining barangays, the venue will be any of the adjoining barangay where a portion of the land is situated.

The legal effect of the decision arrived at the katarungang pambarangay is that, the execution of the decision may not be issued by the barangay concerned. Petition to enforce the execution of the judgment shall be filed before the court having territorial jurisdiction. The court, under its discretion, may order a case for barangay conciliation or arbitration.

If no conciliation was arrived at, or if the barangay process does not apply, the commencement of the action in court should be initiated.

After an unsuccessful arbitration, the barangay secretary shall issue a certification to that effect.

Term:

Katarungang Pambarangay Law - provides for the settlement of disputes between individual residents of the same city or municipality, thru mediation, arbitration or conciliation, before the Katarungang Pambarangay.

Question of the Day:

May a corporation be impleaded as a party to a barangay conciliation proceeding? Why?

CRIMES AGAINST ABUSE OF CHASTITY

Where the offender is the jail warden or the custodian of a woman prisoner, any relationship had by him with the woman prisoner even without any solicitation or advances of an immoral or indecent nature will bring about this crime because of the ascendancy that the jail warden or the custodian of the prisoner holds over the prisoner.

So even if the woman prisoner fell in love with the custodian, that is no justification for the custodian to establish some sexual or intimate relationship with her. Even if the warden responsible would be courting the prisoner, that would be covered by the prohibition. He can courts after the prisoner is no longer under his custody or she is no longer a prisoner. A prisoner is an accountability of the government.

So in a case where a woman was convicted and eventually made to serve sentence. While serving sentence, she was being visited by religious sisters or nuns bringing her some religious articles. The nuns noticed as days and months passed by, the prisoner is becoming pregnant. So this was reported to prison authorities. An investigation was conducted. The jail warden admitted that he is the author of the pregnancy. His claim, it was out of affection. He did not make any immoral solicitation or advances. The woman prisoner was also questioned, and she confirmed. She in fact recalls that: “There were only 2 of them there. She was lonesome, where they love each other’s company. Nonetheless the jail warden was convicted, because the essence of the crime is one of taking advantage of official authority. The defense of the jail warden was that the provision of Art. 245 punishing the making of immoral or indecent advances or solicitation he never made it. It was purely companion and this was also confirmed by the woman prisoner.

SC: The best evidence of the solicitation is the pregnancy. Actions speak louder than voice. So he was convicted.

So it is not a matter of whether the solicitation of jail warden is punished. It is a matter of the prisoner is under his responsibility.
***IMPT: The crime is committed even though the immoral or indecent solicitation or advances was made not on the prisoner but on the sister, the daughter, or the wife of the prisoner. So even though the prisoner is a male, this crime can be committed, when the immoral or indecent solicitations had been made to the wife of the prisoner or to the daughter of the prisoner or to the sister of the prisoner or to any female relative of the prisoner within the same degree. **BUT noticeably, the mother of the prisoner is not included. So if the immoral or indecent solicitation of a sexual relation was made to the mother of the prisoner, this crime is not committed. Instead, the violation will be that of the Anti-Graft and Corrupt Practices Act --- that of receiving or demanding or asking any gift or favor, on one who is transacting with the public office where the public officer is involved, but not the crime of abuse against of chastity.

Real vs Personal Defenses

Real defenses are those that attach to the instrument and are available against all holders, whether in due course or not, but only by the party or parties entitled to raise them.

- Minority/Incapacity
- Forgery
- Non-delivery of incomplete instrument
- Material Alteration
- Ultra Vires Act of Corporation
- Fraud in Factum or Esse Contractus
- Illegality – if declared void for any purpose
- Vicious force or violence
- Want of authority
- Prescription
- Discharge in insolvency

Personal Defenses are available only against the holder not in due course who stands in privity with the party who is entitled to set it up or those who are not or do not have the rights of a holder in due course.

- Failure or absence of consideration
- Illegal consideration
- Non-delivery of complete instrument
- Conditional delivery of complete instrument
- Fraud in inducement
- Filling up blank not in authority
- Duress or intimidation
- Filling up blank beyond reasonable time
- Transfer in breach of faith
- Mistake
- Insertion of wrong date
- Ante-dating or post-dating for illegal or fraudulent purposes


Terms:

Holder in due course – a holder who has taken the instrument under the following conditions: (1) that it is complete and regular upon its face; (2) That he became a holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact. (3)That he took it in good faith and for value; (4) That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.



Word of the Day

Allonge – A piece of paper annexed to a negotiable instrument on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.

Question of the Day
Are postal money order and treasury warrants negotiable instruments?

People's Initiative

This is probable the best case there is on the question of the people's right to directly propose amendments to the constitution through the system of initiative.

SANTIAGO VS COMELEC

Nature: Petition for prohibition; the right of the people to directly propose amendments to the constitution through the system of initiative.

Miriam Defensor Santiago, Alexander Padilla, Ma. Isabel Ongpin – petitioners
Jesus Delfin, Alberto & Carmen Pedrosa (PIRMA), COMELEC – respondents
Raul Roco, DIK, MABINI, IBP, LABAN – petitioners/intervenors

Facts:
Atty. Delfin filed with the COMELEC a petition to amend the constitution by People’s initiative. His proposal is to lift the term limits of elective officials and thus amending Sections 4 and 7 of Art VI, Section 4 of Art VII and Section 8 of Art X of the 1987 Philippine Constitution. In his petition, Delfin asked the COMELEC to issue an order (1) fixing the time and dates for signature gathering all over the country; (2) cause the publication of such order in newspaper of general and local circulation; and (3) instructing municipal election registrars in all regions of the Philippines to assist him and his volunteers in establishing signing stations. The COMELEC then issued an order directing Delfin to cause the publication of the petition and set the case for hearing.

At the hearing, Senator Roco filed a motion to dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC. Thereafter, Senator Santiago, et al., filed a special civil action for prohibition before the Supreme Court.

Issues:
The issues in the instant petition are the following:

(1) Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC.

(2) Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefore, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

(3) Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative.

(4) Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution.

(5) Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

Rulings of the Court:

The Supreme Court held that:

(1) The instant petition is viable despite the pendency in the COMELEC of the Delfin Petition. The COMELEC has no jurisdiction to take cognizance of the petition filed by Delfin and that it becomes imperative to stop the COMELEC from proceeding any further. The SC said that despite the pendency of the Delfin Petition in the COMELEC, the SC had jurisdiction over the Defensor-Santiago petition because the petition may be treated as a special civil action for certiorari under Rule 65 of the Rules of Court, given the Roco motion filed with the COMELEC seeking dismissal of the Delfin petition on the ground of lack of jurisdiction.

(2) RA 6735 is inadequate to cover the system of initiative to amend the constitution because while Sec 3 mentions initiative on the Constitution and Sec 5 restates the constitutional requirements as to the percentage of registered voters needed for a proposal, the law does not provide for the contents of a petition for initiative on the Constitution; while there are subtitles for national and local initiatives, there is no subtitle for the initiative on the Constitution; thus, the law is incomplete, and this inadequacy cannot be cured by empowering the COMELEC to promulgate implementing rules and regulations.

(3) It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.

(4) Santiago’s petition contend that the people's initiative is limited to amendments to the constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. Delfin in his memoranda contend that the lifting of the limitation on the term of office of elective officials provided under the 1987 constitution is not a "revision" of the constitution. It is only an amendment. "Amendment envisages an alteration of one or a few specific provisions of the constitution. Revision contemplates a re-examination of the entire document to determine how and to what extent it should be altered. The Office of the Solicitor General opined that extension of term of elected officials constitute a mere amendment to the Constitution, not a revision thereof. In its amended petition in intervention DIK and MABINI contend that the Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. A revision cannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(5) COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition. It was held that COMELEC is without jurisdiction to entertain the Delfin Petition because it did not contain the signatures of the required number of voters as required by the Constitution.

The petition therefore is granted; R. A. No. 6735 is declared inadequate to cover the system of initiative on amendments to the Constitution, and for failure to provide sufficient standard for subordinate legislation; Those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution is declared void; and the Commission on Elections is ordered to dismiss the DELFIN petition.

Word of the Day:

Initiative is a form of direct legislation by the people consisting of two parts: petition and election. It does not become effective until passed by voters and its availability does not remedy the denial of the right to referendum.

Renvoi

I am always fascinated by the subject of Conflicts of Laws. It’s the foreign element that spices up any legal problems. As we all know, a Conflict of Laws case is any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between the laws of different states or countries.

And as if things are not spicy enough (pardon the word), there is the problem of the “renvoi”. “Renvoi” is a french word which means “refer back” or “return”. The problem on “renvoi” arises when there is doubt as to whether the reference by the lex fori to the foreign law involves reference to the internal law of the foreign law or a reference to the entirety of the foreign law, including its conflicts rules.

An example of a “renvoi” problem was the case of Christenses vs Garcia (7 SCRA 95) where a California citizen who resided in our country for 50 years dies here. The SC was faced with a problem of whether to apply a California law which provides that the law of the domicile of its deceased citizen should apply or our civil code which provides that the national law of the deceased should be applied in succession cases. In this particular case, the SC applied the Philippine law.

PING-PONG

“Double Renvoi” , on the other hand occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the “renvoi”. But since the foreign law remits the case to Philippine law, being the law of the deceased’s domicile, the foreign court may discover that Philippine law does not accept the remission as it applies the national law of the deceased, so the foreign court, sitting as Philippine court, would still apply its own internal law. This is then what our court will apply.

PING-PONG-PING

Terms:

Renvoi – rule in some jurisdiction that in a suit by a nonresident upon a cause arising locally, his capacity to sue will be determined by looking to the law of his domicile rather than to the local law. (Barron’s) (Therefore only two laws are involved).

Transmission – the process of applying the law of a foreign state thru the law of a second foreign state. (Therefore, it involves three laws.)

Question of the Day

In the absence of definitive laws on the matter, how should the “renvoi” problem in the Philippines be resolved?

The Beginning...

Hello Everyone!!!

This is an off-shoot of my personal blog inspired by my Securities Professor.

Since I am about to graduate from law school and have decided to review in law school in Manila, this blog will primarily cater to pointers that I need to remember about my journey to become a lawyer. Call this a journal... an account... of rants and raves... of jeers and cheers on this personal quest.

Feel free to leave any message or comments. Inspirational ones shall truly be appreciated. Opinions and views either conforming or dissenting to my own shall also be very much appreciated.

So come on, join me in my journeys... wherever it may lead.