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    Any opinion, information or remark made on this site, including any response to queries or comments posted, should not be regarded as a complete and authoritative statement of the law. There is no warranty as to the completeness or accuracy of the information and the authors will not be liable for any loss or damage relating to the use or reliance thereon. A grain of salt is recommended. No recipient of any information or content from this site should act or refrain from acting on the basis of such information or content. Consult your favorite legal representative. Use of this website does not and will not create any legal relationship between the authors and the receiver/user/reader and any lawyer-client privilege will not apply.

Archive for the ‘Notes’ 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 »

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 »

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 »

Joint Ventures; Sharing in Profits and Losses

Posted by lexforiphilippines on September 6, 2010

If parties to a joint venture agreed on how the profits from the joint venture would be divided, but did not specify how losses would be split, how should the losses be distributed?

A joint venture, being a form of partnership, is to be governed by the laws on partnership.  Under the laws on partnership, particularly Article 1797 of the Civil Code, the losses and profits shall be distributed in accordance with the partnership agreement; if only the share of each partner in the profits has been agreed upon, the share of each in the losses shall be in the same proportion. So said the Supreme Court in the consolidated cases of Marsman Drysdale Land, Inc. vs. Philippine Geoanalytics, Inc. and Gotesco Properties, Inc. (G.R. No. 183374; 29 June 2010) and Gotesco Properties, Inc. vs. Marsman Drysdale Land, Inc. and Philippine Geoanalytics, Inc. (G.R. No. 183376; 29 June 2010).

For a digest of said cases, click on Digested Cases under Tools.

Posted in Cases, Civil Law, Corporate Law, Law School, Notes | Tagged: , | Leave a Comment »

Property Relations in Void Marriages and “Live-In” Relationships

Posted by lexforiphilippines on September 3, 2010

When a man and a woman live together under a void marriage, or when a man and a woman, capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage, their property relations shall be governed by the rules on co-ownership.   In the absence of proof to the contrary, properties acquired by both parties during their union are presumed to have been obtained through their joint efforts and will be owned by them in equal shares.  A party who did not participate in the acquisition by the other party of any property is deemed to have contributed jointly in the acquisition of such property if the former’s efforts consisted in the care and maintenance of the family and of the household.  (Article 147, Family Code; Gonzales vs. Gonzales, G.R. No. 159521, 16 December 2005)

Posted in Civil Law, 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 »

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 »

Rules of Procedure for Environmental Cases

Posted by lexforiphilippines on June 7, 2010

On 13 April 2010, the Supreme Court issued the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) to protect the people’s constitutional right to a balanced and healthful ecology.  The Rules, which took effect on 29 April 2010, will govern the procedure in civil, criminal and special civil actions involving enforcement or violations of environmental laws such as the Revised Forestry Code, the Water Code, the Philippine Mining Act, the Indigenous Peoples Rights Act, the Ecological Solid Waste Management Act, the Clean Air Act, and the Clean Water Act.

For the salient features of the rules, please see Tools under Laws and Implementing Rules

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