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Archive for August, 2010

Republic Act No. 9745 – Anti-Torture Act of 2009

Posted by lexforiphilippines on August 24, 2010

A video supposedly showing a crime suspect being tortured while in police custody recently grabbed the headlines.  The picture brings to mind Republic Act No. 9745 (“R.A. 9745”) or the “Anti-Torture Act of 2009,” which was enacted on 10 November 2009 specifically to curb and punish torture (physical and mental) and other cruel, inhuman and degrading treatment or punishment inflicted by a person in authority or agent of a person in authority upon another person in his/her custody.

Under R.A. 9745:

  • A victim of torture has the right:

(a)    To have an impartial investigation by the Commission on Human Rights (CHR) and other concerned government agencies such as the Department of Justice (DOJ), the Public Attorney’s Office (PAO), the Philippine National Police (PNP), the National Bureau of Investigation (NBI) and the Armed Forces of the Philippines (AFP);

(b)   To have the investigation of the torture completed within a maximum period 60 working days from the time a complaint for torture is filed, and to have any appeal resolved within the same period;

(c)    To have sufficient government protection for himself/herself and other persons involved in the investigation/prosecution such as his/her lawyer, witnesses and relatives, against all forms of harassment, threat and/or intimidation as a consequence of the filing of the complaint for torture or the presentation of evidence for such complaint;

(d)   To be given sufficient protection in the manner by which he/she testifies and presents evidence in any forum to avoid further trauma; and

(e)    To claim for compensation under Republic Act No. 7309,* which should in no case be less than P10,000.00, and under other existing laws and regulations.

  • Any confession, admission or statement obtained as a result of torture is inadmissible in evidence in any proceeding, except if the same is used as evidence against a person or persons accused of committing torture.
  • Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are prohibited.  The PNP, AFP and other law enforcement agencies, as well as their regional offices, are required to submit to the CHR and make available to the public at all times, a list of all detention centers and facilities under their respective jurisdictions/areas with the corresponding data on the prisoners or detainees incarcerated or detained in such centers/facilities, such as names, date of arrest and incarceration, and the crime or offense committed.  The list should be updated within the first 5 days of every month at the minimum.  Failure to comply with this requirement is punishable under R.A. 9745.
  • The penalty is most severe (reclusion perpetua) if the torture results in death or mutilation, or is committed against children, or is committed with rape, or other forms of sexual abuse that make the victim insane, imbecile, impotent or maimed for life.
  • Torture as a crime will not absorb or will not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission, of such torture.  Torture will be treated as a separate and independent criminal act, the penalties for which will be imposed without prejudice to any other criminal liability under domestic and international laws.
  • Persons who have committed any act of torture will not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions.
  • Every person arrested, detained or under custodial investigation is given the right:

(a)    Before and after interrogation, to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If he/she cannot afford the services of his/her own doctor, he/she will be provided by the State with a competent and independent doctor to conduct the physical examination.  If the person arrested is female, she will be attended to preferably by a female doctor.

(b)   To immediate access to proper and adequate medical treatment.

These rights may be waived by the person arrested, detained or under custodial investigation, provided the waiver is made knowingly and voluntarily, in writing, and executed in the presence and assistance of his/her counsel.

  • The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances.
  • The physical examination and/or psychological evaluation of the victim should be contained in a medical report, duly signed by the attending physician and detailing the victim’s medical history and the physician’s findings, including the nature and probable cause of the victim’s injury, pain, disease and/or trauma, and the approximate time and date when it/they was/were sustained.  The report is to be attached to the custodial investigation report and considered a public document.
  • No person will be expelled, returned or extradited to another State where there are substantial grounds to believe that such person will be in danger of being subjected to torture, as determined by the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the DOJ, in coordination with the Chairperson of the CHR.

* An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for other purposes.

Click on Laws under Tools to see the other salient features of R.A. 9745.

Posted in constitutional Law, Criminal Law, Laws and Implementing Rules, Notes | Tagged: , , | 1 Comment »

A Sense of Fair Play in Upholding an Immunity Agreement

Posted by lexforiphilippines on August 20, 2010

“More than any one, the government should be fair.” – The Supreme Court concluded its opinion in the case of Disini vs. Sandiganbayan (G.R. No. 180564; 22 June 2010) with this statement.

Said case involved an immunity agreement between petitioner and the State whereby petitioner agreed to testify for, and provide information and documents to, the State in two cases involving the contract for the construction of the Bataan Nuclear Power Plant, believed to have been brokered by one of his second cousin’s companies and attended by anomalies.  Under the same agreement, petitioner would not be compelled to testify in any other case which the state may bring against his said cousin.  Eighteen years after the immunity agreement was forged, and after petitioner complied with his undertaking, the State, through the PCGG, revoked its guarantee not to compel petitioner to testify against his second cousin.

Upholding petitioner’s immunity from testifying against his second cousin in other cases, the Supreme Court, in part, held:

“x x Trusting in the Government’s honesty and fidelity, (petitioner) agreed and fulfilled his part of the bargain.  Surely, the principle of fair play, which is the essence of due process, should hold the Republic on to its promise.”

“A contract is the law between the parties.  It cannot be withdrawn except by their mutual consent.  This applies with more reason in this case where (petitioner) had already complied with the terms and conditions of the Immunity Agreement. To allow the Republic to revoke the Agreement at this late stage will run afoul of the rule that a party to a compromise cannot ask for a rescission after it had enjoyed its benefits.”

To know more about the case and the Court’s ruling, click on Digested Cases under Tools and look for the digest of Disini vs. Sandiganbayan (G.R. No. 180564; 22 June 2010).

Posted in Cases, Civil Law, Law School, Political Law | Tagged: , , | 1 Comment »

Is Sexual Infidelity Tantamount to Psychological Incapacity?

Posted by lexforiphilippines on August 16, 2010

In the case of Ligeralde vs. Patalinghug and Republic (G.R. No. 168796; 15 April 2010), the High Court held that the “(wife’s) act of living an adulterous life cannot automatically be equated with a psychological disorder, especially when no specific evidence was shown that promiscuity was a trait already existing at the inception of marriage.”  Her husband, who petitioned to have their marriage declared void, must be able to establish that his wife’s unfaithfulness was a manifestation of a disordered personality, which made her completely unable to discharge the essential obligations of the marital state.  He failed in this respect; neither his testimony nor the psychologist’s findings showed the root cause of his wife’s alleged incapacity.  The Court stressed that the root cause of the psychological incapacity must be identified as a psychological illness, its incapacitating nature fully explained and established by the totality of the evidence presented during trial.  The Court concluded that while petitioner’s wife had some character flaws and was far from being a perfect wife and a good mother, these imperfections did not warrant a conclusion that she had a psychological malady at the time of the marriage that rendered her incapable of fulfilling her marital and family duties and obligations.

Click on Digested Cases under Tools for a digest of Ligeralde vs. Patalinghug and Republic (G.R. No. 168796; 15 April 2010).

Posted in Civil Law, Law School, Remedial Law | Tagged: , , , | Leave a Comment »

BIR Lifesytle Check for Individuals

Posted by lexforiphilippines on August 13, 2010

Recently, the Bureau of Internal Revenue (BIR) has been in the news for filing a case against a prominent businessman for failing to file his correct income tax return. Said businessman supposedly filed a zero tax return for the year 2007 but was able to acquire a Lamborghini worth Php26Million in the same year. The deed of sale for the luxurious car was said to have been provided by the Land Transportation Office (LTO) to the Bureau of Internal Revenue.

In his first State of the Nation Address, the President mentioned that the BIR will be filing cases against suspected smugglers and tax evaders on a weekly basis.

With this mandate coming from the highest official of the land, we can expect the BIR to focus its collection efforts against suspected tax cheats and high-profile individual taxpayers suspected of evading taxes.

But how will the Bureau go about this directive?

BIR Lifestyle Check

On March 9, 2010, the Bureau of Internal Revenue issued Revenue Memorandum Order (RMO) No. 19-2010, known as the Taxpayer’s Lifestyle Check System, with the objective to exhaust all means and methodology of determining an individual’s income. Under the RMO, the National Investigation Division (NID) of the BIR shall verify the existence of a taxpayer’s high value assets and/or conspicuous spending by accessing the records of appropriate government and private entities, such as but not limited to the following: the LTO, Bureau of Immigration, airline and shipping companies, Maritime Industry Authority, Civil and Aeronautics Board, Manila Electric Company, Land Registration Authority, Register of Deeds, resorts, membership clubs, or similar establishments, homeowner associations, real estate development authorities, and credit card companies, and Statement of Assets and Liabilities and Networth and/or Amnesty Returns filed under Republic Act No. 9480.

The information gathered from the aforementioned entities shall then be evaluated vis-à-vis the data extracted from the BIR’s Integrated Tax System (ITS) on the concerned taxpayer’s registered business/es, returns filed and amount of taxes paid. The economic use/beneficial ownership of properties shall be considered in the evaluation process. All properties registered under the name of  the taxpayer’s child, whether emancipated or minor, or any relative shall be considered as those of the taxpayer when the property is not proven to have been acquired under any of the means enumerated in the New Civil Code of the Philippines and the tax thereon has been properly paid, and/or the child or relative has no independent means sufficient for the acquisition of the property.

After evaluation, if sufficient evidence so warrants, the investigator shall request a formal issuance of a Letter of Authority to conduct a formal investigation of the subject taxpayer.

What will constitute prima facie evidence of fraud or substantial under-declaration of taxes?

If the taxpayer’s net worth has increased in a given year or if he has acquired substantial assets or incurred substantial spending and it was verified from the ITS that he has not filed an income tax return for the period or the declared income therein is disproportionate to his spending then the BIR will take is as a prima facie evidence of substantial under declaration of taxes.

Posted in Law School, Laws and Implementing Rules, Taxation | Tagged: , , , , , | Leave a Comment »

When Preventive Suspension Will Give Rise to Constructive Dismissal

Posted by lexforiphilippines on August 11, 2010

The Supreme Court, in the case of Mandapat vs. Add Force Personnel Services, Inc. and Court of Appeals (G.R. No. 180285; 6 July 2010), stated that constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego his continued employment. 

In the same case, the High Court explained that preventive suspension may be legally imposed on employee whose alleged violation is the subject of an investigation.  The purpose of his suspension is to prevent him from causing harm or injury to the company as well as to his fellow employees (Section 8, Rule XXIII, Book V, Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997).  No preventive suspension shall last longer than 30 days and the employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker (Section 9, Rule XXIII, Book V, Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997).  When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement or when preventive suspension is for an indefinite period, only then will constructive dismissal set in.

Click on Digested Cases under Tools for a digest of Mandapat vs. Add Force Personnel Services, Inc. and Court of Appeals (G.R. No. 180285; 6 July 2010).

Posted in Cases, Labor Law, Law School | Tagged: , , | 9 Comments »

Recall, Withdrawal and Revocation of “Midnight Appointments”

Posted by lexforiphilippines on August 6, 2010

Under Executive Order No. 2, issued on 30 July 2010 by President Benigno S. Aquino III, the following appointments, made by former President Gloria Macapagal-Arroyo and other appointing authorities in her administration, were considered “midnight appointments” that violate Section 15, Article VII of the 1987 Constitution* and Section 261(g) of the Omnibus Election Code,** and were thereby recalled, withdrawn and revoked:

  • Those made on or after 11 March 2010, including all appointments bearing dates prior to 11 March 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after 11 March 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority;
  • Those made prior to 11 March 2010, but to take effect after said date or appointments to office that would be vacant only after 11 March 2010; and
  • Appointments and promotions made during the period of 45 days prior to the 10 May 2010 elections in violation of Section 261 of the Omnibus Election Code.

The positions covered or otherwise affected were declared vacant.  The Executive Secretary was authorized to designate an officer-in-charge (OIC) until the replacement has been appointed and qualified, when designation of an OIC is necessary to maintain efficiency in public service and ensure the continuity of government operations.

* Section 15, Article VII of the 1987 Constitution states that: “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service of endanger public safety.”

** Section 261 (g) of the Omnibus Election Code considers it an election offense if a government official, during the period of 45 days before a regular election and 30 days before a special election: (1) appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority by the Commission on Elections (COMELEC) when the position to be filled is essential to the proper functioning of the office or agency concerned, and the position will be filled in a manner that will not influence the election, and except when appointment of a new employee is urgently needed, in which case COMELEC should be notified of the appointment within 3 days from the date of appointment; or (2) promotes or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.

For a copy of Executive Order No. 2, click on Laws under Tools.

Posted in Election Law, Law School, Laws and Implementing Rules, Notes, Political Law | Tagged: , , | Leave a Comment »

The Philippine Truth Commission of 2010

Posted by lexforiphilippines on August 5, 2010

On 30 July 2010, President Benigno Simeon Aquino III issued Executive Order No. 1 creating the Philippine Truth Commission of 2010.  The Commission is tasked to investigate reports of graft and corruption “of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people,” involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman.

The Truth Commission shall be composed of a Chairman and four (4) members.  Officials of the Commission shall include a General Counsel, a Deputy General Counsel, a Special Counsel, and a Clerk of the Commission.

In relation to the graft cases it shall choose to investigate, the Truth Commission is empowered to:

  • Collect and receive evidence
  • Require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers
  • Upon proper request, obtain information and documents from the Senate and the House of Representatives and records of investigations conducted by their committees
  • Upon proper request, obtain from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts
  • Invite or subpoena witnesses and take their testimonies, and for that purpose, administer oaths or affirmations
  • Recommend that a person be admitted as a state witness
  • Turn evidence over to the appropriate prosecutorial authorities for expeditious prosecution
  • Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for assistance and cooperation
  • Engage the services of resource persons, professionals and other personnel, when necessary
  • Engage the services of experts as consultants or advisers, when necessary
  • Promulgate rules and regulations and rules of procedure
  • Exercise such other acts incident to or appropriate and necessary in connection with the Commission’s objectives.

Any person called to testify before the Truth Commission has the right to counsel at any stage of the proceedings.  To ensure the safety of persons called to testify, the Commission may secure the assistance of the Philippine National Police and other appropriate government agencies.

If a government official or personnel (a) fails, without lawful excuse, to appear when subpoenaed by the Commission; or (b) appears before the Commission but refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, he shall be subject to disciplinary action.  If a private person does the same, he may be dealt with in accordance with law.

The proceedings of the Truth Commission shall be open to the public.  However, the Commission, on its own, or on the request of the person testifying, may hold an executive or closed-door hearing when matters of national security or public safety are involved or when the personal safety of the witness warrants it.

The Truth Commission should accomplish its mission and render a comprehensive final report on or before 31 December 2012.  The comprehensive final report shall be published upon the President’s directive.

For a copy of Executive Order No. 1, click on Laws under Tools.

Posted in Law School, Laws and Implementing Rules, Notes, Political Law | Tagged: , | 1 Comment »

Nullity of Marriage Because of Psychological Incapacity

Posted by lexforiphilippines on August 3, 2010

Article 36 of the Family Code states that “(a) marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

In Santos vs. Court of Appeals (G.R. No. 112019; 4 January 1995), the Supreme Court said that “psychological incapacity” must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.  It should refer to “no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.”  The intendment of the law, said the Court, was to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.

In Republic of the Philippines vs. Court of Appeals and Molina (G.R. No. 108763, 13 February 1997), the Supreme Court laid down the following guidelines in the interpretation and application of Article 36 of the Family Code:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.  This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.  The incapacity must be psychological – not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties or one of them was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage.  The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment or prior to such moment.

(4) The incapacity must also be shown to be medically or clinically permanent or incurable.  Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.  Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.  Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes.  The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.  In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children.  Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

In Marcos vs. Marcos (G.R. No. 136490, 19 October 2000), the Supreme Court clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity.  It is no longer necessary to introduce expert opinion in a petition under Article 36 of the Family Code if the totality of evidence shows that psychological incapacity exists and its gravity, juridical antecedence, and incurability can be duly established. (Suazo vs. Suazo, G.R. No. 164493; 10 March 2010)

In Te vs. Te (G.R. No. 161793; 13 February 2009), the Supreme Court suggested the relaxation of the stringent requirements of Molina (Suazo vs. Suazo, G.R. No. 164493; 10 March 2010), stressing that in applying the Molina standards, each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts, and that courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

Posted in Civil Law, Notes | 1 Comment »