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Archive for the ‘constitutional Law’ Category

Conversion of Municipalities into Cities

Posted by lexforiphilippines on October 13, 2010

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.

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Posted in Cases, constitutional Law, Notes, Political Law | Tagged: , , | Leave a Comment »

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 »