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Archive for the ‘Laws and Implementing Rules’ Category

The Crime of Offending Religious Feelings

Posted by lexforiphilippines on October 6, 2010

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.

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

Can there be Immediate Disconnection of Electric Service?

Posted by lexforiphilippines on September 30, 2010

  • 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.



Posted in Cases, Energy and Environment, Laws and Implementing Rules, Notes, Remedial Law | Tagged: , , , | Leave a Comment »

BIR’s new abatement program

Posted by lexforiphilippines on September 23, 2010

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

Posted in Laws and Implementing Rules, Taxation | Tagged: , , , | 3 Comments »

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

Posted by lexforiphilippines on September 9, 2010

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)

Posted in Civil Law, Law School, Laws and Implementing Rules, Notes | 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 »

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 »

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 »

Republic Act No. 10054 – Motorcycle Helmet Act

Posted by lexforiphilippines on July 14, 2010

Republic Act No. 10054, also known as the “Motorcycle Helmet Act” was signed into law on 23 March 2010.  Under this new law –

  • All motorcycle riders, including drivers and back riders, are required to wear standard protective motorcycle helmets at all times while driving, whether long or short drives, in any type of road and highway.  Standard protective motorcycle helmets are appropriate types of helmets for motorcycle riders that comply with the specifications issued by the Department of   Trade and Industry (DTI).
  • Any person caught not wearing the standard protective motorcycle helmet will be punished with a fine of P1,500.00 for the first offense, P3,000.00 for the second offense, P5,000.00 for the third offense, and P10,000.00 plus confiscation of the driver’s license for the fourth and succeeding offenses.
  • Tricycle drivers are exempted from complying with the mandatory wearing of motorcycle helmets.
  • Every seller and/or dealer should make available, every time a new motorcycle unit is purchased, a new motorcycle helmet that bears the Philippine Standard (PS) mark or Import Commodity Clearance (ICC) of the Bureau of Product Standards (BPS) and complies with the standards set by the BPS, which the purchaser may buy at his option.  Any seller and/or dealer who violates this requirement will be punished with a fine of not less than P10,000.00 but not more than P20,000.00.
  • All manufacturers and importers of standard protective motorcycle helmets are required to secure a PS license or ICC prior to the sale and distribution of their products.  Upon the effectivity of R.A. 10054, only those standard protective motorcycle helmets bearing the PS or ICC mark shall be sold in the market.
  • The DTI, through the BPS, shall conduct a mandatory testing of all manufactured and imported motorcycle helmets in the Philippines.  The BPS shall periodically issue a list of motorcycle helmet manufacturers and importers and the brands which pass the standards of the BPS, to be published in a newspaper of general circulation or in its website.

  • Any person who uses, sells and distributes substandard motorcycle helmets or those which do not bear the PS mark or the ICC certificate will be punished with a fine of not less than P3,000.00 for the first offense, and P5,000.00 for the second offense, without prejudice to other penalties under Republic Act No. 7394 or the “Consumer Act of the Philippines.”
  • Tampering, alteration, forgery and imitation of the PS mark and the ICC certificates in the helmets will be punished with a fine of not less than P10,000.00 but not more than P20,000.00, without prejudice to other penalties imposed in Republic Act No. 7394 or the “Consumer Act of the Philippines.”

Posted in Laws and Implementing Rules | 47 Comments »

Expanded Senior Citizens Act of 2010 – Implementing Rules

Posted by lexforiphilippines on July 8, 2010

The Department of Social Welfare and Development signed on June 18,2010 the Implementing Rules with respect to the Expanded Senior Citizens Act of 2010.

Under the Implementing Rules, a qualified senior citizen shall be granted a 20% discount and VAT exemption on his/her purchases, if applicable.

The said privileges shall apply to purchases of medicine, medical supplies and accessories, including medical and dental services, as well as to domestic air and sea travel, public transportation (PUJ, taxi, LRT), hotel accommodation and purchases in restaurants. With respect to food establishments, the discount now also applies to take-outs  and deliveries. The discount shall also apply to recreation centers (for golf cart rentals, yoga classes or badminton courts), and tickets to theaters, cinemas, carnivals, concert halls, museums and parks.

The Implementing Rules also provide for free medical and dental services in all government hospitals, medical facilities, out patient clinics, including professional fees. There is also a grant of a 5% discount on the monthly utilization of water and electricity subject to certain rules and criteria.

A social pension of P500.00 is also granted but such grant is subject to guidelines still to be issued.

For a copy of the Implementing Rules, you may click on the Tools Tab.

Posted in Civil Law, Laws and Implementing Rules, Taxation | Tagged: , , | 2 Comments »