Conversion of Municipalities into Cities

Section 10, Article X of the 1987 Constitution states that “(n)o province, city, municipality, or barangay shall be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.”

Applying this provision, the Supreme Court, in the case of League of Cities of the Philippines (LCP), et al. vs. Commission on Elections, et al. (G.R. No. 176951, G.R. No. 177499 & G.R. No. 178056; 24 August 2010), held that the creation of local government units must follow the criteria established in the Local Government Code and not in any other law.  The High Court stressed that Congress could not write such criteria in any other law, like laws creating cities or converting municipalities into cities.  The clear intent of the Constitution, said the High Court, was to insure that the creation of cities and other political units follow the same uniform, non-discriminatory criteria found solely in the Local Government Code.  Consequently, when Congress enacted cityhood laws which exempted 16 municipalities from the increased income requirement under the Local Government Code, as amended by Republic Act No. 9009 (RA 900), the exemption was held to be in violation of Section 10, Article X of the 1987 Constitution.  That the 16 municipalities had pending cityhood bills in Congress before the income requirement was increased was of no moment.  To be valid, said the High Court, such exemption must be written in the Local Government Code and not in any other law, including the cityhood laws.

To know more about said case, click on Digested Cases under Tools.

Looking for legal assistant

A Company  is looking for a legal assistant who will be:

• Reporting to the Chief Legal Counsel, with the main responsibility of providing legal advice and assistance on corporate and commercial activities for the Company and its subsidiaries/affiliates;
• Responsible for corporate housekeeping of the Company and its subsidiaries/affiliates;
• Ensuring the Company’s compliance with the reportorial requirements of the Securities and Exchange Commission (SEC), PEZA, DENR and other government regulatory bodies;
• Providing legal support/research on commercial, tax, securities, labor, and environmental laws and regulations;
• Drafting/reviewing and maintaining contracts, agreements, commercial arrangements and legal documents;
• Monitoring and improving contract review process and administering standard contract template system.

REQUIREMENTS:

• Candidate must possess a degree in Law with at least 1 year experience in corporate/ commercial law and compliance.Recent bar takers may also apply.
• Must possess strong commercial, business and legal research skills.
• Must be an effective communicator, driven and able to work independently. Good with details.
• Must be Filipino citizen.

The Company is located in Ortigas Center, Pasig City. Should anyone be interested, please mail your resume and application letter to mail@lexforiphilippines.com.

The Crime of Offending Religious Feelings

A man who, garbed as national hero, Jose Rizal, stood up near the altar of a Catholic church during a prayer service, shouting that the church should stop interfering in government affairs and holding a sign that read “Damaso” (referring to Fr. Damaso, the antagonist in Rizal’s novel “Noli Me Tangere”), was arrested for “Offending the Religious Feelings.”

The public’s fascination was not just with the theatricality with which the man made his plea for the Catholic Church to steer clear of the Reproductive Health Bill.  That the man was charged with the novel-sounding crime of “Offending religious feelings” also sparked the public’s interest.

The crime is not as common as estafa, theft or murder, but it has been in the statute books for a long time.  Under Article 133 of the Revised Penal Code, the crime of “Offending the Religious Feelings” is committed when anyone, while in a place devoted to religious worship or during the celebration of any religious ceremony, performs acts notoriously offensive to the feelings of the faithful.  The penalty for this crime is arresto mayor in its maximum period (from 4 months and 1 day to 6 months) to prision correccional in its minimum period (from 6 months and 1 day to 2 years and 4 months).

The law, indeed, is old, but it is still in force and is clearly experiencing a rebirth.

Can there be Immediate Disconnection of Electric Service?

• MERALCO is within its rights to immediately disconnect the electric service of the consumer after due notice, upon discovery of a tampered, broken, or fake seal on, the meter, provided the discovery was personally witnessed and attested to by an officer of the law or a duly authorized representative of the Energy Regulatory Board.  It is only when the discovery is witnessed by such government representatives will it constitute prima facie evidence of illegal use of electricity by the person who benefits from the illegal use.  (Section 4, Republic Act No. 7832 or the Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994)

An “officer of the law” is one “who, by direct supervision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as barangay captain, barangay chairman, barangay councilman, barangay leader, officer or member of Barangay Community Brigades, barangay policeman, PNP policeman, municipal councilor, municipal mayor and provincial fiscal.”  (Section 1, Rule III, Rules and Regulations Implementing RA 7832)

The presence of the consumer during the MERALCO inspection cannot be a substitute for the presence of the government representatives.

• MERALCO is authorized to immediately disconnect the electric service of its consumers without the need of a court or administrative order when: (1) the consumer, or someone acting on his behalf, is caught in the very act of committing any of the acts enumerated in Section 4(a) of RA 7832; or (2) when any of the circumstances so enumerated in Section 4(a) of RA 7832, constituting prima facie evidence of illegal use of electricity, is discovered for the second time. (Section 6, RA 7832)

Section 4(a) of RA 7832 enumerates the following circumstances, which will constitute prima facie evidence of illegal use of electricity by the person benefited by such illegal use, if the discovery of such circumstances is personally witnessed and attested to by an officer of the law or a duly authorized representative from Energy Regulatory Board:

(i) The presence of a bored hole on the glass cover of the electric meter, or at the back or any other part of said meter;

(ii) The presence inside the electric meter of salt, sugar and other elements that could result in the inaccurate registration of the meter’s internal parts to prevent its accurate registration of consumption of electricity;

(iii) The existence of any wiring connection which affects the normal operation or registration of the electric meter;

(iv) The presence of a tampered, broken, or fake seal on the meter, or mutilated, altered or tampered meter recording chart or graph, or computerized chart, graph, or log;

(v) The presence in any part of the building or its premises which is subject to the control of the consumer or on the electric meter, of a current reversing transformer, jumper, shorting and/or shunting wire, and/or loop connection or any other similar device;

(vi) The mutilation, alteration, reconnection, disconnection, bypassing or tampering of instruments, transformers, and accessories;

(vii) The destruction of, or attempt to destroy, any integral accessory of the metering device box which encases an electric meter, or its metering accessories; and

(viii) The acceptance of money and/or other valuable consideration by any officer of employee of the electric utility concerned or the making of such an offer to any such officer or employee for not reporting the presence of any of the foregoing circumstances.

• Courts are prohibited from issuing injunctions or restraining orders against electric utilities over the exercise of their authority to disconnect service unless the disconnection is attended by bad faith or grave abuse of authority.  (Section 9, RA 7832)

In view of MERALCO’s dominance over its market and the customers’ relatively weak bargaining position as against MERALCO, and in view too of the serious consequences and hardships a customer stands to suffer upon service disconnection, MERALCO’s failure to strictly observe the legal requirements for instant disconnection can be equated to the bad faith or abuse of right that the law speaks of.

• The presence of a defect in the meter, whether inherent, intentional or unintentional, including meter-tampering, which has existed for a considerable length of time, will create a presumption of constructive notice of such defect or tampering on the part of MERALCO.  MERALCO’s failure to discover such defect or tampering, considering the length of time, will amount to inexcusable negligence that will bar it from collecting its differential billing against the consumers.

• Electricity is a basic necessity whose generation and distribution is imbued with public interest, and its provider is a public utility subject to strict regulation by the State in the exercise of police power. In view of the serious consequences resulting from immediate disconnection of electric service, the law provides strict requisites that MERALCO must follow before it can be granted authority to undertake instant disconnection of electric service due to its consumers.

These are legal precepts applied by the Supreme Court in deciding the case of Manila Electric Company (MERALCO) vs. Spouses Edito and Felicidad Chua and Josefina Paqueo (G.R. No. 160422; 5 July 2010).

For a digest of the case, click on Digested Cases under Tools.



Who Should Perform Drug-Testing?

In Nacague vs. Sulpicio Lines, Inc. (G.R. No. 172589; 8 August 2010), the Supreme Court considered as doubtful basis for termination of employment, the results of a dangerous drug test performed by a medical clinic which was not accredited by the Department of Health.  The High Court cited Section 36 of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) which provides that drug tests should be performed only by any government forensic laboratories or any of the drug testing laboratories accredited and monitored by the Department of Health, to safeguard the quality of test results.

To know more about the case and the Court’s ruling, click on Digested Cases under Tools.

BIR’s new abatement program

The Bureau of Internal Revenue has issued Revenue Regulations No. 9-2010 last September 13, 2010 providing for the policies and guidelines on the abatement of surcharges and/or compromise penalties in relation to the filing of tax returns and payment of taxes under certain conditions.

Note that only the surcharges and compromise penalty are abated. The taxpayer should still pay the interest due. The program is also not available to those taxes where a Letter of Authority, Tax Verification Notice, Audit Notice, Letter Notice or discrepancy notices have already been issued or if the tax involved is already a subject of any pending criminal case for tax evasion and other criminal offenses under the Tax Code.

Copy of the  Revenue Regulation is here. RR 9-2010

Withholding Agent’s Right to File a Claim for Tax Refund

In Commissioner of Internal Revenue vs. Smart Communications, Inc. (G.R. No. 179045-46; 25 August 2010), the Supreme Court held that the person entitled to claim a tax refund is the taxpayer [Sections 204(c) and 229 of the National Internal Revenue Code (NIRC)], but in case the taxpayer does not file a claim for refund, the withholding agent has the right to file the claim, even when it is unrelated to, or is not a wholly owned subsidiary of, the principal taxpayer.  The High Court cited two reasons: (1) “(the withholding agent) is considered a ‘taxpayer” under the NIRC as he is personally liable for the withholding tax as well as for deficiency assessments, surcharges, and penalties, should the amount of the tax withheld be finally found to be less than the amount that should have been withheld under law,” and (2) “as an agent of the taxpayer, his authority to file the necessary income tax return and to remit the tax withheld to the government impliedly includes the authority to file a claim for refund and to bring an action for recovery of such claim.”  The Supreme Court stressed, however, that as an agent of the taxpayer, it is the duty of the withholding agent to return to the principal taxpayer what he has recovered, otherwise, he would be unjustly enriching himself at the expense of the principal taxpayer from whom the taxes were withheld, and from whom he derives his legal right to file a claim for refund.

To know more about said case and the Supreme Court’s ruling, click on Digested Cases under Tools.

Promotion Only in Nomenclature

When an employee’s position is converted to a higher job grade level but he is not given additional functions or responsibilities, can he be considered as “promoted” and claim conversion and promotion increase?

In SCA Hygiene Products Corporation Employees Association-FFW vs. SCA Hygiene Products Corporation (G.R. No. 182877; 9 August 2010), the Supreme Court held that of primordial consideration is not the nomenclature or title given to the employee, but the nature of his functions.  In this case, the employees concerned, although given a higher job grade level following a company-wide job evaluation, continued to occupy the same positions they were occupying before the job evaluation.  Their job titles remained the same and they were not given additional duties and responsibilities.  Like their previous job grade level, their new job grade level was also categorized as rank-and-file.  What transpired, said the High Court, was only a promotion in nomenclature, and the employees were not entitled to conversion or promotion increase.

For a digest of the case, click on Digested Cases under Tools.

Bank’s General Lien on Deposits

Is a stipulation in bank-loan documents giving the bank a right to set-off or apply the borrower’s loan (including interest) against his bank deposits, valid?

Yes.  In Metropolitan Bank and Trust Company vs. Mariñas (G.R. No. 179105; 26 July 2010), the Supreme Court sustained the bank’s authority to make deductions from a borrower’s deposits and apply them to his loans and stipulated interest, pursuant to the Deeds of Assignment with Power of Attorney executed by the borrower, giving the bank such authority.  The Court cited Article 1159 of the Civil Code which states that “obligations arising from contract have the force of law between the contracting parties and should be complied with in good faith.”  Not being contrary to law, such agreement between the bank and the borrower must be respected and given the force of law between them, said the Court.  The Court, however, ruled that, considering the total amounts of said borrower’s deposits inclusive of interest earned vis-à-vis his total obligations, the total depletion of his accounts was unwarranted.  The bank was ordered to account for whatever excess deductions made on the borrower’s accounts and to return them with earned interest.  The Court stressed that “(a)s a business affected with public interest, and because of the nature of their functions, banks are under obligation to treat the accounts of their depositors with meticulous care, always having in mind the fiduciary nature of their relationship.”

To know more about said case and the Court’s ruling, click on Digested Cases under Tools.

What is the status of children born before a marriage is annulled or nullified on the ground of psychological incapacity?

Children conceived or born before the judgment of annulment or absolute nullity of the marriage on the ground of psychological incapacity has become final and executory shall be considered legitimate. (Article 54, Family Code)

Legitimate children have, in general, the right to bear the surnames of the father and the mother, to receive support from their parents, and to successional rights granted by law to legitimate children. (Article 174, Family Code)