Editorial - Some Random Thoughts

The Origin of Santa Claus

2011-07-18T01:23:00.004+08:00

In pre-Christian Rome, the emperors accountable their best abhorred citizens to accompany offerings and ability during the Saturnalia (in December) and Kalends (in January). Later, this ritual broadcast to accommodate gift-giving amid the accepted populace. The Catholic Church gave this custom a Christian acidity by re-rooting it in the declared gift-giving of Santa Claus.

Santa Claus, additionally accepted as Saint Nicholas, Sinterklaas, Ancestor Christmas, Kris Kringle, or artlessly "Santa", is a historical, allegorical and fabulous amount who, in abounding Western cultures, is said to accompany ability to the homes of the acceptable accouchement during the backward black and brief hours of Christmas Eve, December 24 or on his Feast Day, December 6 (Saint Nicholas Day). A acclaimed folk fable associated with Santa Claus says that he lives in the far north, in a acreage of abiding snow. Santa Claus lives with his wife Mrs. Claus, a endless cardinal of bewitched elves, and eight or nine aerial reindeer. Another legend, affected in the song Santa Claus Is Coming to Town, says that he makes a account of accouchement throughout the world, allocation them according to their behavior ("naughty" or "nice") and that he delivers presents, including toys, candy, and added ability to all of the acceptable boys and girls in the world, and sometimes atramentous to the annoying children, on the distinct night of Christmas Eve. He accomplishes this accomplishment with the aid of the elves who accomplish the toys in the branch and the reindeer who cull his sleigh.

The fable may accept allotment of its base in hagiographical tales apropos the actual amount of allowance giver Saint Nicholas. Nicholas was built-in in Parara, Turkey in 270 CE and after became Abbey of Myra. He died in 345 CE on December 6th. He was alone alleged a saint in the 19th century. Nicholas was amid the best arch bishops who convened the Council of Nicaea in 325 CE and created the New Testament. The argument they produced portrayed Jews as "the accouchement of the devil" who bedevilled Jesus to death. In 1087, a accumulation of sailors who admired Nicholas confused his basic from Turkey to a altar in Bari, Italy. There Nicholas supplanted a changeable boon-giving celestial alleged The Grandmother, or Pasqua Epiphania, who acclimated to ample the children's stockings with her gifts. The Grandmother was ousted from her altar at Bari, which became the centermost of the Nicholas cult. Members of this accumulation gave ceremony added ability during a celebration they conducted annually on the ceremony of Nicholas' death, December 6. The Nicholas band advance arctic until it was adopted by German and Celtic pagans. These groups admirable a pantheon led by Woden -their arch god and the ancestor of Thor, Balder, and Tiw. Woden had a long, white bristles and rode a horse through the blast one black ceremony Autumn. Back Nicholas alloyed with Woden, he afford his Mediterranean appearance, grew a beard, army a aerial horse, rescheduled his flight for December, and donned abundant winter clothing.

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In a bid for agnostic adherents in Northern Europe, the Catholic Church adopted the Nicholas band and accomplished that he did (and they should) administer ability on December 25th instead of December 6th. In 1809, the biographer Washington Irving (most acclaimed his The Fable of Sleepy Hollow and Rip Van Winkle) wrote a banter of Dutch ability advantaged Knickerbocker History. The banter refers several times to the white bearded, flying-horse benumbed Saint Nicholas application his Dutch name, Santa Claus. Dr. Clement Moore, a assistant at Union Seminary, apprehend Knickerbocker History, and in 1822 he appear a composition based on the appearance Santa Claus: "Twas the night afore Christmas, back all through the house, not a animal was stirring, not alike a mouse. The stockings were afraid by the chase with care, in the achievement that Saint Nicholas anon would be there..." Moore innovated by assuming a Santa with eight reindeers who descended through chimneys.

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The Bavarian illustrator Thomas Nast about completed the avant-garde account of Santa Claus. From 1862 through 1886, based on Moore's poem, Nast drew added than 2,200 animation images of Santa for Harper's Weekly. Afore Nast, Saint Nicholas had been pictured as aggregate from a ascetic attractive abbey to a gnome-like amount in a frock. Nast additionally gave Santa a home at the Arctic Pole, his branch abounding with elves, and his account of the acceptable and bad accouchement of the world. All Santa was missing was his red outfit.

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In 1931, the Coca Cola Association apprenticed the Swedish bartering artisan Haddon Sundblom to actualize a coke-drinking Santa. Sundblom modeled his Santa on his acquaintance Lou Prentice, called for his cheerful, ample face. The association insisted that Santa's fur-trimmed clothing be bright, Coca Cola red. And Santa was built-in - a alloy of Christian crusader, agnostic god, and bartering idol.

Capital Punishment

2011-07-18T01:21:00.000+08:00

Capital punishment, the death penalty, or execution is the killing of a person by judicial process as a punishment for an offense. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from Latin capitalis, literally "regarding the head" (Latin caput). Hence, a capital crime was originally one punished by the severing of the head.

Capital punishment has in the past been practiced in virtually every society, although currently only 58 nations actively practice it, with 95 countries abolishing it (the remainder having not used it for 10 years or allowing it only in exceptional circumstances such as wartime). It is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or cultural region. In the European Union member states, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment.

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Over 60% of the world's population live in countries where executions take place insofar as the four most populous countries in the world (the People's Republic of China, India, United States and Indonesia) apply the death penalty and all of them voted against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly in 2008. The Philippines, too, executed its criminals. However, the 1987 Constitution qualifiedly abolished the death penalty. It provided in Article III, Section 19 paragraph (1) thereof: "Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. . ."

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Congress found compelling reasons to impose the death penalty when it enacted Republic Act No. 7659 which was signed into law on December 13, 1993. The law explained that the crimes punishable by death under this law are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. It added that due to the alarming upsurge of such crimes which has resulted not only in the loss of human lives and wanton destruction of property but also affected the nation's efforts towards sustainable economic development and prosperity while at the same time has undermined the people's faith in the Government and the latter's ability to maintain peace and order in the country. In the justice, public order and the rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, Congress found compelling reasons to impose the death penalty for said crimes. The crimes for which the death penalty was reimposed included treason, qualified piracy, qualified bribery, parricide, murder, infanticide, kidnapping, robbery with homicide or rape, certain kinds of rape, plunder, certain violations of the Dangerous Drugs Act 1972, and carnapping with homicide or rape.

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It will be remembered that Leo Echegaray, the very first death convict who was executed by lethal injection upon the reimposition of the death penalty, was a native of Catanduanes. He was convicted of raping his own 10 year old daughter.

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The reimposition of the death penalty, however, was not to last for long. In 2006, Congress passed into law Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." It was signed into law by then President Gloria Macapagal Arroyo on June 24, 2006. Since then, and up to now, there is no capital punishment in our country.

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However, the Maguindanao massacre again rekindles discussions on the wisdom of the abolition of capital punishment. More than a year ago, in the morning of November 23, 2009, in Maguindanao, on the island of Mindanao, 58 people were kidnapped and brutally killed. The victims were on their way to file a certificate of candidacy for Esmael Mangudadatu, vice mayor of Buluan town, who was challenging Datu Unsay mayor Andal Ampatuan, Jr., son of then incumbent Maguindanao governor Andal Ampatuan, Sr., in the forthcoming Maguindanao gubernatorial election. The 58 people killed included Mangudadatu's wife, his two sisters, journalists, lawyers, aides, and motorists who were witnesses or were mistakenly identified as part of the convoy.

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The nation watched in horror television footages showing a backhoe burying not only the victims but also their vehicles. The depravity of the crime appears to be unmatched in Philippine history, and it shocked the national consciousness.

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It has been argued by proponents of the death penalty that the community has the need, if not the right, to defend itself against certain criminals. The imposition of the supreme penalty is not only justified in certain types of crimes, but is required as a measure of social defense. Where the accused is a hardened criminal who exhibits no compunction in killing, he is a menace to his fellow men. To spare his life is to endanger the lives and properties of others. Or, for instance, where the accused is like a depraved beast who sexually assaults his own daughter - his own flesh and blood - he has no place in a civilized society.

“ZONA”

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November 25, 1984, a contingent of more than two hundred Philippine marines raided the compound occupied by Rizal Alih and his group at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. The soldiers could have easily obtained a search warrant from any of the ten civil courts then open and functioning in Zamboanga City. But they instead simply barged into the beleaguered premises on the verbal order of their superior officers.

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The military operation was commonly known and dreaded as a "zona," which was not unlike the feared practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting the persons fingered by a hooded informer, and executing them outright (although the last part is not included in the modern refinement).

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The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and deter them from entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. The besieged compound surrendered the following morning, and sixteen male occupants were arrested. The military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises.

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As a consequence, Rizal Alih and his group sued the soldiers in the Supreme Court (Rizal Alih, et al. vs. Maj. General Delfin C. Castro, et al., G.R. No. L-69401, June 23, 1987). Their purpose was mainly to recover the articles seized from them and to prevent these from being used as evidence against them. They demanded the return of the arms and ammunition on the ground that they were taken without a search warrant as required by the Bill of Rights.

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The soldiers, while admitting the absence of the required search warrant, sought to justify their act on the ground that they were acting under superior orders. There was also the suggestion that the measure was necessary because of the aggravation of the peace and order problem generated by the assassination of Mayor Cesar Climaco where Rizal Alih was allegedly a suspect.

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In its Decision, the Court held that "superior orders" cannot countermand the Constitution. Too, the fact that the petitioners were suspected of the Climaco killing did not excuse the constitutional short-cuts the soldiers took. The Court reminded the defense: "The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the non-observance of the constitutional guaranty against unreasonable searches and seizures. There was no state of hostilities in the area to justify, assuming it could, the repressions committed therein against the petitioners. It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take them into custody; but that is a cynical argument. It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated reports that they were stockpiling weapons.

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The Supreme Court further said that even if it were assumed for the sake of argument that Rizal Alih, et al. were guilty, they would not have been any less entitled to the protection of the Constitution, which covers both the innocent and the guilty. This is not to say, that the Constitution coddles criminals. What it does simply signify is that, lacking the shield of innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved sentence, but from arbitrary punishment. Every person is entitled to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a majority of one. Every individual is entitled to the full protection of the Constitution, and the Bill of Rights can stand as a stolid sentinel for all, the innocent as well as the guilty, including the basest of criminals.

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In acting as they did, the soldiers also defied the precept that "civilian authority is at all times supreme over the military" so clearly proclaimed in the Constitution. Here, the soldiers simply by-passed the civil courts, which had the authority to determine whether or not there was probable cause to search the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on their own unauthorized determination of the petitioner's guilt.

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As the search of the petitioners' premises was violative of the Constitution, it follows that all the firearms and ammunition taken from the raided compound are inadmissible in evidence in any of the proceedings against the petitioners. These articles are "fruits of the poisonous tree."

Searches and Seizures

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Article III, Section 2 of the Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized."

It is also declared in Article III, Section 3(2) that —"Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."

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The right against unreasonable search and seizure is at the top of the hierarchy of rights, next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. This is as it should be for, as stressed by a couple of noted freedom advocates, the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure "includes the right to exist, and the right to enjoyment of life while existing."

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Thus, a person or even a police officer cannot just force his way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle. "It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement."

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Suppose, however, that an illegal search was made upon a person, and the search yielded an illegal object hidden in his person? Would that justify the illegal search?

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The settled rule in this jurisdiction is that a yield of incriminating evidence will not legitimize an illegal search. Indeed, the end never justifies the means (People vs. Encinada, G.R. No. 116720, October 2, 1997). The fact that the search disclosed a prohibited substance in the suspect’s possession, and thus confirmed the police officers’ initial information and suspicion, did not cure its patently illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. By express constitutional mandate, evidence seized in violation of a persons rights against illegal search and seizure is inadmissible in any proceeding.

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The arrest of wrongdoers are laudable objectives in any well-ordered society. But it should never be pursued at the cost of dismantling the intricate apparatus for the protection of the individual from overzealous law-enforcers who mistakenly believe that suspected criminal have forfeited the safeguards afforded them by the Constitution. Law-enforcers are not licensed to themselves break the law to apprehend and punish law-breakers. Such a practice only leads to further defiance of the law by those who have been denied its protection.

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It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.

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Some remedies are worse than the disease itself. This is the lesson one learns from the fable about the hawk and the pigeons. As Aesop tells it, once there were pigeons who lived in fear of a falcon, but they had always somehow managed to escape the falcon’s attacks. They went to the hawk for protection. "Why", the hawk said, "do you prefer a life of constant anxiety when I can keep you safe from any attack by the falcon? Make me your king." Trusting the hawk, the pigeons made him their king, but as soon as he was elected king, he began eating a pigeon a day. Thus, the poor pigeons were better off before they employed the remedy to their problem.

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Indeed, the disregard of a citizen’s constitutional right against unreasonable search and seizure is a cure worse than the disease it seeks to redress. Law-breaking can never be a means to law enforcement

Foreign Judgements

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There are instances when a Filipino who is residing in the Philippines, or a Philippine corporation whose business activities are confined locally, are sued abroad, say, for collection of a sum of money or for damages. Suppose the foreign court renders judgment against the Filipino individual or corporation but the defendant does not have any assets in the foreign country, may the foreign judgment be enforced here in the Philippines?

Yes, it may be enforced, but not automatically. There is a need for the prevailing party in the case filed abroad to first file a case in a local court for the enforcement of the foreign judgment.

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The rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected. The conditions required by the Philippines for recognition and enforcement of a foreign judgment were originally contained in Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived from the California Act of March 11, 1872. Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained unchanged down to the last word in nearly a century.

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However, our country does not blindly obey any foreign judgment which is sought to be enforced in its shores. In case of a foreign judgment against a person the judgment is only presumptive evidence of a right as between the parties and their successors in interest. The judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

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The foreign judgment is only presumptive evidence of a right (Sec. 48, Rule 39, Rules of Court), unlike a judgment rendered by a court of the Philippines which is "conclusive between the parties and their successors in interest" (Sec. 47, Rule 39, Rules of Court).

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That is why, on the mere strength of its promulgation, a foreign judgment is not yet conclusive, as it can be annulled on the grounds enumerated above. In providing that the foreign judgment may be repelled by evidence of a defect which militates against its enforcement, our own rules obviously allow our courts to look into the merits of the foreign judgment if the same is challenged. And as the defendant is allowed to present controverting evidence, it stands to reason that the foreign judgment may be refused enforcement if found to be infirm. Otherwise, what use will plaintiff’s evidence serve if the merits of the foreign decision cannot be inquired into?

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In the language of the Supreme Court in the early case of Edwards v. McCoy, 22 Phil 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration."

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Therefore, in a case filed in a local court for the enforcement of a foreign judgment, the defendant may raise defenses to counter its enforceability in our country. One of the grounds for controverting a foreign judgment is clear mistake of fact or law.

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If the defendant succeeds in showing that the foreign court committed a clear mistake of fact or law, the foreign judgment will not be enforced. The plaintiff can no longer rely solely upon the presumption of validity of the foreign judgment. As the word connotes, it is only presumptively correct, and will be disregarded by our courts if found to be a product of clear mistake of fact or law. Since a civil case is decided on the basis of preponderance, and the only evidence adduced is defendant’s evidence showing mistake of fact or law, it is rather difficult to imagine how evidence can preponderate in favor of the side which has no evidence at all.

Mistake of Fact

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There are several ways by which a crime may be committed. One is due to negligence or lack of care. Example is reckless imprudence resulting to homicide, such as when a pedestrian is ran over and killed by a car which was being driven recklessly. Here, there is no intent to do wrong. What is being punished is the lack of care which led to the death of an innocent victim. Another kind of offense called mala prohibita is one where there is neither fault nor negligence or lack of care, but is a crime only because the law says so. Example is the smuggling of, say, a car into the country. The bringing in of a car is not evil. Neither is there negligence or recklessness in the act. But it is a crime regardless of the lack of any criminal intent or negligence because the law prohibits the importation of a car without payment of proper taxes.

The most common and most detested crime, however, is one which is committed through fault or malice. In this kind of offenses (called mala per se), a wrongful act was committed, and there was really an intent to do wrong. Example is murder. The killing of another necessarily involves an evil intent. Here, there can be no crime without an evil mind. In fact, no law is needed for a man to know that the killing of another person is bad. Punishment is the sequence of wickedness, without which it can not be. The essence of this kind of an offense is the wrongful intent, without which it can not exist.

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In this class of offenses, no crime is committed when no wrong was intended. This happens when, for instance, there was mistake of fact. This was illustrated in the very early case of United States vs. Ah Chong, G.R. No. 5272, March 19, 1910 which was decided by our Supreme Court more than a century ago. (Note: The Philippines was then a colony of America, and criminal cases in our country were prosecuted in the name of the United States).

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The accused, Ah Chong, a Chinese in the Philippines, was employed as a cook at "Officers' quarters, No. 27," Fort McKinley, Rizal Province. Also employed at the same place as a houseboy named Pascual Gualberto. "Officers' quarters No. 27" was a detached house situated some 40 meters from the nearest building, and in August, 1908, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building. The door of the room was not furnished with a permanent bolt or lock, and the occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room.

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On the night of August 14, 1908, at about 10 o'clock, the accused, who had retired for the night, was suddenly awakened by someone trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the accused, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At the moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the accused thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested.

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Seizing a kitchen knife which he kept under his pillow, the accused struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the accused, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

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The accused then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was a robber because he forced open the door of their sleeping room, despite defendant's warnings. He insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self defense. There had been several robberies in Fort McKinley not long prior to that date, one of which took place in a house in which the accused was employed as cook. According to the accused, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

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In acquitting the accused, the Supreme Court held that that there can be no doubt that accused would be entitled to complete exemption from criminal liability for the death of the intruder, if the intruder who forced open the door of his room had been in fact a dangerous thief, as the accused believed him to be. No one, under such circumstances, would doubt the right of the accused to resist and repel such an intrusion, bearing in mind that the supposed thief still forced open the door notwithstanding accused’s thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt. In the darkness of the night, in a small room, with no means of escape, with the perceived dangerous thief advancing upon him despite his warning, the accused would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. There was no "evil mind" behind the killing, but only mistake of fact.

The Liberty of Abode

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One of the cherished liberties guaranteed us in the Bill of Rights is the liberty of abode, or the right to stay in the place of our choice. So, the government cannot dictate upon us where our residence or domicile should be, and our right to change the same within the limits prescribed by law cannot be curtailed. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Before we proceed, a word of caution. As one of my professors emphasized during my student days: "You can stretch your arms as far out as you want, as long as it does not touch your neighbor’s nose". This means that there is always a balancing of rights. There is no such thing as an absolute or unbridled right. The exercise of any right is always subject to limitations, because we live in a society where other people also have rights. The government, too, has rights.

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Back to our discussions on the liberty of abode. There is no law student who will ever forget the case of Zacarias Villavicencio, et al. vs. Justo Lukban, G.R. No. 14639, March 25, 1919, which illustrated this constitutional right. This was decided by our Supreme Court almost one hundred years ago.

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Prostitutes in Manila proliferated in Gardenia Street, in the District of Sampaloc, before and around the year 1918 where they had been permitted to ply their trades for a number of years. Eventually, the Mayor of the City of Manila at that time, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated Gardenia Street closed.

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Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. During this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, as laborers.

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About midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the coastguard cutters Corregidor and Negros that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart for that region and had neither given their consent to the deportation. The involuntary guests were received on board the ships by a representative of the Bureau of Labor and a detachment of Constabulary soldiers.

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The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor and the haciendero Yñigo had no previous notification that the women were prostitutes who had been expelled from the city of Manila.

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The attorney for the relatives and friends of a considerable number of the deportees filed a case with the Supreme Court for the production in court of the women who have been forcibly deported, and asked the court to inquire into the validity of their deportation.

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In declaring illegal the aforementioned acts of Mayor Lukban and the Chief of Police, the Supreme Court said that the liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the mayors and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen.

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The Court emphasized that no official, no matter how high, is above the law. "The law is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."

Administrative Suspension

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An elected official may be meted the penalty of suspension in an administrative case where he has been found guilty of misconduct. But suppose that, in the meantime that the case was pending, the elected official’s term of office expired, and he was re-elected to another term. Does the suspension order issued during his expired term automatically apply to a new term to which the official may have been reelected?

Plain common sense dictates that there could be no such automatic application or extension of the suspension order to a new term to which the official was reelected. If the official had not run for reelection or if he had lost in his bid for reelection, the suspension order would have lapsed and become functus officio by virtue of the expiration of his term. He would no longer have any office from which he would remain suspended, or to which he could be reinstated after expiration of the suspension. So, it is clear that suspension can refer only to the term during which the alleged misconduct was committed.

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Indeed, if the official had run for an entirely new office (say, he was a vice-mayor, and he was elected in the succeeding election as mayor), it could not be contended that the suspension order (from office as vice-mayor) would automatically attach to this entirely new office as mayor. Salus populi est suprema lex, it is said. One just cannot overrule the voice of the people which elected him to a new office.

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More than 50 years ago, the Supreme Court in Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 406 (1959) issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor."

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Lizares v. Hechanova, et al. 123 Phil. 916 (1966) replicated the doctrine. The Supreme Court dismissed the petition in that case for being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions." (Id. at 919). Consistently, the Supreme Court has reiterated the doctrine in a string of jurisprudence including two cases involving a Senator and a Member of the House of Representatives. (Vide Office of the Ombudsman v. Evangelista, G.R. No. 177211, March 13, 2009, 581 SCRA 350, 361; Trillanes IV v. Pimentel, Sr., G.R. No. 179817, June 27, 2008, 556 SCRA 471, 488; Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 216-217; People v. Judge Toledano, 387 Phil. 957, 964 [2000]; People v. Jalosjos, 381 Phil. 690, 702-703 [2000]).

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Salalima v. Guingona, Jr., 326 Phil. 847 (1996) reinforced the doctrine. Citing sound public policy, the Supreme Court added that to rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts allegedly committed during his prior term, such that his second term may thus be devoted to defending himself in those cases to the detriment of public service. Mayor Garcia v. Hon. Mojica, 372 Phil. 892 (1999) further explained the doctrine of condonation. Here, the Supreme Court stated that there is the presumption that the people voted for an official with knowledge of his character, precisely to eliminate the need to determine in factual terms the extent of this knowledge, which is an obviously impossible undertaking. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official’s culpability was committed prior to the date of reelection.

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Take note, however, that the discussions above refer only to suspension as an administrative penalty. Preventive suspension of an elected official after a criminal case has been filed against him is different. It is not a penalty because it is imposed at a time before the official has been found guilty of the crime. Its purpose is "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" or to keep him off "the records and other evidence." It is a means to assist prosecutors in firming up a case, if any, against an erring local official. This mode of preventive suspension is not affected by reelection.

Presumption of innocence applied

2011-07-10T23:16:00.002+08:00

In the June 30, 2010 issue of this paper, I wrote about the presumption of innocence. This is enshrined in Section 14[1], of Article III of the Constitution (the Bill of Rights) which provides that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.

For the reason that the accused is presumed innocent until the contrary is proved, conviction must rest, as well-settled jurisprudence tells us, not on the weakness of the defense but on the strength of the prosecution. "When the prosecution fails to discharge its burden, an accused need not even offer evidence in his behalf." (People vs. Castro, et al., G.R. No. 122671, November 18, 1997).

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The recent exoneration by the Sandiganbayan of former Governor Hector S. Sanchez and all his other co-accused again proves how the presumption of innocence is applied by our courts. I had the privilege of being the defense lawyer of former governor Sanchez in this case, and also of Neptaly Tañon, in collaboration with his wife, Public Prosecutor Rizalina V. Tañon, who was given special authority to defend her husband.

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The case arose out of a purchase by the provincial government of Catanduanes in early 2000 of 10 units shotgun at P18,500 each. According to the criminal complaint or information filed with the Sandiganbayan against former governor Hector S. Sanchez, Neptaly Tañon, Ireneo del Rosario, Felipe Almojuela and Luis Ribano, Jr., the price of each shotgun was only P12,400, thereby having an overprice of P6,100 each, or P61,000 for the ten units.

*****

During the hearing of the case, however, the prosecution presented only three witnesses: two investigators of the National Bureau of Investigation (NBI), namely, Atty. Ramilo Quinto and Ariel Jonathan Contreras, and a cashier of a branch of the company which sold the firearms, Shooters Guns & Ammo Corp.

*****

The NBI investigators did not have any personal knowledge of the price of the subject shotguns at the time they were purchased. And so, for being hearsay, the testimonies of these witnesses cannot legally support any inference of overpricing. With respect to the cashier of another branch of the seller, neither did she testify on the price of the shotguns at the time of the purchase.

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In fact, to compound the prosecution’s woes, the prosecution itself, perhaps unwittingly, submitted in evidence a price list of various shotguns being sold in 1998 by Shooters Guns and Ammo Corp. at P22,312.50 each, which is almost four thousand pesos higher than the P18,500.00 paid for by the provincial government. And so, instead of establishing an overprice, what the prosecution succeeded in showing was that the price for the purchase was way below the market price. The shotguns were actually purchased by the province at a bargain. If this were a basketball game, what the prosecution did was to make a perfect three-point shot in the opposing team’s goal!

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And so, when the prosecution rested its case and it was already the turn of the defense to present evidence, we decided not to present any defense anymore. We instead filed a Demurrer to Evidence which prayed that the case be dismissed because the evidence submitted by the prosecution was not sufficient to sustain a finding of guilt. We pointed out to the Sandiganbayan that because of the presumption of innocence in favor of the accused, suspicion no matter how strong, cannot be a basis for conviction. The prosecution must rely on the strength of its evidence and not on the weakness of the defense. The accused need not prove his innocence because that is presumed. Consequently, if the evidence adduced by the prosecution does not establish the guilt of the accused beyond reasonable doubt, the accused need not adduce any evidence in his favor to secure a judgment of acquittal. The presumption of innocence continues until sufficient evidence is introduced to overcome his presumed innocence, and his guilt is established.

*****

True enough, the Sandiganbayan dismissed the case for insufficiency of evidence without the need of any evidence from the defense anymore.

Gambling

2011-07-10T23:15:00.002+08:00

With the recent expose made by Archbishop Cruz on "jueteng" and the people involved in the said activity, there is much interest again in gambling. But what, exactly, is gambling? Why is it illegal?

Gambling refers to a wager or bet in which each player agrees to risk losing some material possession to other players in exchange for the chance to win the possessions of other players without compensation to the loser, the winner(s) and loser(s) being determined. Gambling is mutual covetousness like dueling is mutual attempted murder. In dueling, each person agrees to let the other person try to kill him in exchange for the opportunity to try to kill the other person. So a gambler agrees to let others try to take his possessions in exchange for the opportunity for him to try to take the other person's possessions.

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Some people say, "Everything in life involves a gamble." This confuses risk with gambling. Not all risks involve gambling. These acts involve no wager and no stakes. There is no agreement to try to take someone else's possessions. The gambler always wants financial loss to occur, because he hopes to profit from those losses.

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The Bible authorizes only three morally legitimate ways for money or possessions to pass from one owner to another. Gambling fits none of them. They are: (1) The law of labor ("the work ethic") wherein one may be paid as compensation for work done to produce goods or services that benefit other people; (2) The law of exchange whereby a person may simply agree to exchange possessions (goods or money) with someone else. Each party is paid or fairly compensated by receiving possessions of fair value in return for what he gives up. Gambling does not fit here, because the winner has no intention to compensate the loser; and (3) The law of giving whereby a person may knowingly choose, of his own free will, to unconditionally give something away as an expression of good will or kindness, with no obligation for the receiver to offer any compensation in return. Again, gambling does not fit this category because gamblers do not give willingly, freely, as an act of love or compassion.

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As a matter of policy, our government has condemned the existence of illegal gambling activities such as illegal numbers games as this has become an influential factor in an individual's disregard for the value of dignified work, perseverance and thrift since instant monetary gains from it are being equated to success, thereby becoming a widespread social menace and a source of corruption.

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That is why gambling is penalized as a crime under Article 195, and related articles, in the Revised Penal Code. The penalty of arresto mayor or a fine not exceeding two hundred pesos is imposed upon any person who, in any manner shall directly, or indirectly take part in any game of monte, jueteng or any other form of lottery, policy, banking, or percentage game, dog races, or any other game of scheme the result of which depends wholly or chiefly upon chance or hazard; or wherein wagers consisting of money, articles of value or representative of value are made; or in the exploitation or use of any other mechanical invention or contrivance to determine by chance the loser or winner of money or any object or representative of value. The penalty is increased for those who permit gambling in their house, and increased all the more for the maintainer, conductor, or banker in a game of jueteng or any similar game.

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Republic Act No. 9287 which was approved on April 2, 2004 further increased the penalties for those who engage in illegal numbers games. The penalty is imprisonment from 6 years and 1 day to 8 years for those who act as personnel or staff of an illegal numbers game operation; from 8 years and one 1 day to 10 years for those who act as collector or agent; from 10 years and 1 day to 12 years for those who act as coordinator, controller or supervisor; from 12 years and one 1 day to 14 years for those who act as maintainer, manager or operator; from 14 years and 1 day to 16 years for the financier or capitalist; and from sixteen 16 years and one 1 day to 20 years for persons who act acts as protector or coddler.

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As seen, there is a stiff penalty of imprisonment for the gambling operator. And have you ever wondered who the biggest gambling operator is in this country? The one who operates casinos and lotteries? But is immune from criminal prosecution?

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Right! Of course you know that I am referring to the government. And so, haven't you retched at the utter shamelessness of this situation? The government - with its fat government officials and functionaries - does not only have a monopoly on gambling. It also sends to jail anybody else who dares to compete with it.

David and Goliath

2011-07-10T23:14:00.002+08:00

When the contestants or protagonists are greatly disproportionate to one another, in that one enjoys a great physical or other advantage over the other, it is usually referred to as a fight between David and Goliath. This has become a part of our lingua franca, and serves as a constant reminder that the stronger and the bigger does not always win the fight. Remember how America was humiliated by the Vietcong in the Vietnam war?

When the North Vietnamese invaded the United States-sponsored South Vietnamese, a new line in the sand had been crossed. What would follow next would be years of deadly warfare in the skies and on land. The Vietnam Conflict would see the rise of the turbofan-powered jet fighter that could handle multiple roles at speeds topping Mach 2. The Vietnam War saw heavy use of bigger, faster and more potent aircraft than ever before. Carpet bombing was taken to all new heights (literally) and Napalm was used on massive scales to weed out an enemy that could not be seen in the thick dense jungles. The United States would employ aircraft armed with the latest in air-to-air homing technology on platforms such as the Vought F-8 Crusader and the McDonnell Douglas F-4 Phantom.

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In the end, however, the United States lost the war. David prevailed over Goliath.

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The account of the duel between David and the giant Goliath is given in 1 Samuel, chapter 17. The Philistine army had gathered for war against Israel. The two armies faced each other, camped for battle on opposite sides of a steep valley. A Philistine giant measuring over nine feet tall and wearing full armor came out each day for forty days, mocking and challenging the Israelites to fight. His name was Goliath. The giant champion of the Philistines comes out between the lines and challenges the Israelites to send out a champion of their own to decide the outcome in single combat. Everyone was afraid of Goliath. He seemed invincible. Not even King Saul, the tallest man in Israel, had stepped out to fight. Also, the sides of the valley were very steep. Whoever made the first move would have a strong disadvantage and probably suffer great loss. Both sides were waiting for the other to attack first.

*****

One day David, the youngest son of Jesse, was sent to the battle lines by his father to bring back news of his brothers. David was probably just a young teenager at the time. While there, David heard Goliath shouting his daily defiance and he saw the great fear stirred within the men of Israel. David responded, "Who is this uncircumcised Philistine that he should defy the armies of God?"

*****

So David volunteered to fight Goliath. It took some persuasion, but King Saul finally agreed to let David fight against the giant. Dressed in his simple tunic, carrying his shepherd's staff, slingshot and a pouch full of stones, David approached Goliath. David chose not to wear the King's armor because it felt cumbersome and unfamiliar. David was comfortable with his simple slingshot, a weapon he was skilled at using. The giant cursed at him, hurling threats and insults. David didn't stop or even waver. Everyone else cowered in fear, but David ran to the battle. He knew that action needed to be taken.

*****

As Goliath moved in for the kill, David reached into his bag and slung one of his stones at Goliath's head. Finding a hole in the armor, the stone sank into the giant's forehead and he fell face down on the ground. David then took Goliath's sword, killed him and then cut off his head. 1 Samuel 17:49 describes how David "took out a stone, and slung it, and struck the Philistine on his forehead … and he fell on his face to the ground"; 17:50 describes how "David prevailed over the Philistine with a sling and with a stone, and struck the Philistine, and killed him"; 1 Samuel 17:51 describes how David "took [Goliath’s] sword and drew it out of its sheath, and killed him, and cut off his head with it."

*****

The shocked Philistines flee and are pursued by the Israelites "as far as Gath and the gates of Ekron" chasing and killing them and plundering their camp. Gath, the traditional home of Goliath, was one of the largest of the Philistine cities until destroyed in the ninth century B.C., an event from which it never recovered. David puts the armor of Goliath in his own tent, and takes the head to Jerusalem. Saul sends Abner to bring David to him. The king asks whose son he is. David answers, ‘I am the son of your servant Jesse the Bethlehemite.’ "

The Miranda rights

2011-07-10T23:12:00.002+08:00

In police and law-enforcement movies, have you noticed that whenever the police makes an arrest, they always inform the person arrested that he has the right to remain silent, and that anything said can and will be used against him in a court of law?

That is a result of the famous U.S. case of Miranda vs. Arizona, 384 U.S. 436, 16 l. Ed. 2nd 694. In the said case, Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring.

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The Miranda Rights has been fully adopted in the Philippines (People vs. Samontañez, G.R. No. 134530, December 4, 2000). The Bill of Rights of the Philippine Constitution also provides that "any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel."

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The Supreme Court has laid down the correct procedure for peace officers to follow when making an arrest and in conducting a custodial investigation. At the time the person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must show the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative or any one who chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf.

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The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel.

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Any statement obtained in violation of the Miranda rights shall be inadmissible in evidence. This is the so-called "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, the extrajudicial confessions of accused during custodial investigation taken in disregard of the Miranda rights are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them.

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It must, however, be emphasized that the Miranda rights may be invoked by a person only while he is under custodial investigation which has been defined as the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" [People v. Caguioa, G.R. No. L-38975, January 17, 1980, 95 SCRA 2, 9 citing Miranda v. Arizona, 384 U.S. 436]. Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up. Too, the Miranda rights may no longer be claimed by a defendant in a criminal case already pending in court [People v. Ayson, G.R. No. 85215, July 7, 1989] because he is no longer under custodial investigation.

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However, only the extrajudicial confession or admission made during custodial investigation are inadmissible. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected.

Divorce

2011-07-10T23:11:00.000+08:00

According to Christian teachings, God spelled out the importance of marriage for mankind right at the beginning of human history when, after Eve was created for Adam, the Bible records: "For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh" (Genesis 2:24).

Jesus Christ was asked a specific question about ‘no-fault’ divorce by the Pharisees: "Is it lawful for a man to divorce his wife for any and every reason?" (Matthew 19:3). His answer was emphatic "What …God hath joined together, let not man put asunder" (Matthew 19:6 King James Version).

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Roman Catholics consider marriage a sacrament instituted by God and Christ and is indissoluble by mere human action. Accordingly, God is the author of marriage and blesses the union of man and woman (Gen. 2: 18-25, Heb. 13: 4). It is said that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything."

****

That is the loudest argument against divorce. And that is one of the reasons why divorce is not allowed in the Philippines, being a predominantly Catholic country. Divorce (or the dissolution of marriage) is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties

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Historically for centuries the tendency was for churches of all denominations not to permit any divorce at all. They only allowed legal separation (i.e. non-cohabitation) of spouses and even then only where one spouse had committed a serious sin against the other, such as adultery. Both parties remained legally married and therefore could not remarry. Civil courts came to be regarded as having no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio."

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But marriage is not just a sacrament. It is also considered a civil contract, and on that basis civil authorities gradually asserted their power to decree a "divorce a vinculo matrimonii," or "divorce from all the bonds of marriage." Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce.

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Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. Under a no-fault divorce system, the dissolution of a marriage does not require an allegation or proof of fault of either party. The application can be made by either party or by both parties jointly. Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party.

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Prior to 1975, countries which permitted divorces also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states and the District of Columbia--New York, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce.

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The Philippines is one of the few remaining countries which do not allow absolute divorce. Marriage is supposed to be forever. From an idealistic non-legal standpoint, the sole reason for marriage should be love; the kind of love that transcends time and withstands any impediments that life throws our way. From a legal perspective, on the other hand, no less than the Philippine Constitution (Art. XV, Sec. 2) and the Family Code (Art. 1) expressly characterize marriage as the foundation of the family and an inviolable social institution. The law states that it is a special contract of a permanent union between a man and a woman. It is inviolable. It is permanent. In short, you don’t think of divorce when you get married.

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Marriage is the right thing for the right reason, but marriage can also be the wrong thing if it’s for the wrong reason. And, as it has been opined that "marriage is a mistake which youth must commit", it could simply have been a stupid mistake. But because it is a contract of "permanent union", divorce is not allowed. So, if a man or woman committed a mistake in his youth of marrying the wrong spouse, he/she is supposed to take that mistake to his/her grave. That is a life sentence of extreme pain, without any relief.

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It’s hardly surprising that there’s a lot of people just waiting for the right opportunity to end their respective marriages. The reasons are diverse – physical abuse (against the spouse and/or the children), sexual infidelity, irreconcilable differences and conflicting personalities, gross irresponsibility, loss (and transfer) of affection, among others.

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Is it not about time the Philippines consider a more realistic approach to divorce? I wonder what my good friend, Congressman Cesar Sarmiento, has to say on this.

2011-07-10T23:10:00.000+08:00

The right against deprivation of liberty is guaranteed by no less than the Constitution, which states that "[n]o person shall be deprived of life, liberty or property without due process of law xxx" (Article 3, Section 1) and that "[n]o search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." (Art. 3, Sec.2)

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Any evidence obtained in violation of the constitutional provision regarding warrants of arrest is legally inadmissible in evidence as a "fruit of the poisonous tree." This principle is covered by this exclusionary rule which is likewise enshrined in Article 3, Section 3 of the constitution.

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The fact that the search disclosed a prohibited substance in the suspect’s possession, and thus confirmed the police officers’ initial information and suspicion, does not cure its illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search (People vs. Encinada, G.R. No. 116720, October 2, 1997). By express constitutional mandate, evidence seized in violation of a person’s rights against illegal search and seizure is inadmissible in any proceeding. A yield of incriminating evidence will not legitimize an illegal search, as the end never justifies the means.

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A search and seizure is normally unlawful unless authorized by a validly issued search warrant or warrant of arrest. This protection is based on the principle that, between a citizen and the police, the judge stands as a mediator -- an authority clothed with power to issue or refuse to issue search warrants or warrants of arrest.

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This right has been characterized by the Supreme Court as "a most basic and fundamental" right that has been "often violated and so deserving of full protection". Our system of justice values liberty and always insists on the observance of basic constitutional rights as a condition against the awesome investigative and prosecutory powers of government. Said the Supreme Court in the case of People vs. Cuizon, G.R. No. 109287, April 18, 1996 where NBI agents mishandled a drug bust operation and in so doing violated the constitutional guarantees against unlawful arrests and illegal searches and seizures: "x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society."

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There are, however, instances when arrests may be made without any warrant of arrest. The exceptions [also referred to as warrantless arrests] under the Revised Rules on Criminal Procedure (Rule 113, Sec. 5) are arrests made by a peace officer or a private person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

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Sec. 5 (a) is also referred to as arrests in flagrante delicto, wherein two elements must exist: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Jurisprudence dictates that the person making the warrantless arrest under Sec. 5[a] above must have personal knowledge of the commission of an offense. Thus, the Supreme Court declared: "If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable." (People vs. Doria, G.R. No. 125299, January 22, 1999).

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On the other hand, Section 5 (b) refers to arrests made in hot pursuit, wherein two requisites must exist: (1) an offense has in fact just been committed; and (2) the arresting officer has probable cause based on personal knowledge of facts or circumstances indicating that the person to be arrested committed the offense.

Dangerous Drugs

2011-07-10T23:09:00.002+08:00

Time was when the illicit drug use in the Philippines was mainly an indulgence of the fringe literati, the "burgis", the artists and entertainment circle, far removed from the "masa" and rural culture with its isolated social pockets of marijuana users. None of the hard drugs and the intravenous drug users; none of varied countercultural movements that was requisite or fuel to the growth of the drug culture. It seemed almost possible that while the drug problem raged in most developed countries, the Philippines would be saved from the scourge of illicit drugs. But, alas. Slowly and surely, the illicit drug market has successfully gained inroads into subcultures of users, into collegiate life, and deep into the bowels of Philippine rural life, burgeoning into a raging epidemic of drug addiction.

Today, methamphetamine hydrochloride or "shabu" poses a problem as serious, as frightening, as formidable, as any present day issue confronting the Filipino society. How can a country and a system mired in corruption fare against the commerce of drug trade so empowered by its bottomless coffers and consequent political clout? Many powerful nations have succumbed; the fanfares of their drug wars drug muffled, their policies inevitably compromised, shifting from prevention into containment.

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Shabu, a powerfully addictive meth stimulant, is the drug of choice of over 90% of Filipino drug abusers. Methamphetamine was discovered in Japan in 1919. The crystalline powder was soluble in water, making it a perfect candidate for injection. In the late 30s, it found use for narcolepsy and ADHD (attention deficit hyperactivity disorder). It is still legally produced in the U.S., sold under the trade name Desoxyn (Abbott. PDR 2001) with indications for ADHD and for short-term therapy in exogenous obesity.

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The stimulant effects from methamphetamine can last for hours, instead of the minutes from 'crack' cocaine. Often, the meth user stays awake for days. After injecting or smoking, the immediate rush or high is called a "swap", short-lived, minutes long. Snorting (within 3 to 5 minutes) and ingestion (within 15-20 minutes) causes a euphoria, a "high" rather than an intense "rush" within 15-20 minutes. As the high wears off, the user enters a stage called "tweaking" where he or she becomes prone to violence, delusions and paranoia. Some try to buffer through this stage by the use of cocaine or heroin. Like heroin and cocaine, methamphetamine can be snorted, smoked or injected. Its short-term effects are: heightened attention and energy, excessive talking, euphoria, decreased fatigue, increased activity, increased sexuality, decreased appetite, increased respiration, hyperthermia, occasionally leading to convulsions and lethal levels.

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Its long-term effects are: dependence, anxiety, confusion, and insomnia, addiction, psychosis,
paranoia, hallucinations, visual and auditory mood disturbances, repetitive motor activity, stroke, weight loss,violent behavior, homicidal or suicidal thoughts, ‘crank bugs' - formication (sensation of insects creeping on the skin) causing users to pick at themselves causing ulcerations on the hand and arms, disturbed sleep patterns; decreased sleep needs
disinterest in usual social interactions, sex, food, and cardiovascular damage (inflammation of the heart lining). This is not to mention that the addict will cheat, steal, and even kill just to satisfy his craving for the drug.

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Thus, the threat posed by illegal drugs against human dignity and the integrity of society is malevolent and incessant. Such pernicious effect is felt not only by the addicts themselves but also by their families. It has infected the entire spectum of society, from the lowest to the highest. In fact, a Philippine congressman was arrested and incarcerated in Hongkong for possession of prohibited drugs.

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Society's survival is endangered because its basic unit, the family, is the ultimate victim of the drug menace. The illicit distribution of drugs is one of the most serious problems of our society. The persons who peddle prohibited drugs are "evil merchants of misery and death."

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The principal law on dangerous drugs is Republic Act No. 9165 enacted June 7, 2002, known as the Comprehensive Dangerous Drugs Act of 2002. Under this law, the possession of dangerous drugs is penalized by life imprisonment to death (Note: the death penalty is no longer imposed in the Philippines) and a fine ranging from P500,000.00 to P10,000,000.00 for the unauthorized possession of the following drugs: (1) 10 grams or more of opium; (2) 10 grams or more of morphine; (3) 10 grams or more of heroin; (4) 10 grams or more of cocaine or cocaine hydrochloride; (5) 50 grams or more of methamphetamine hydrochloride or "shabu"; (6) 10 grams or more of marijuana resin or marijuana resin oil; (7) 500 grams or more of marijuana; and (8) 10 grams or more of other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine (MDA) or "ecstasy", paramethoxy-amphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxyamphetamine (GHB), and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements.

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The penalty is reduced to 20 years and one 1 day to life imprisonment and a fine ranging from P400,000.00 to P500,000.00, if the quantity of shabu illegally possessed is 5 grams or more but less than 10 grams. It is further reduced to imprisonment of 12 years and one 1 day to 20 years and a fine ranging from P300,000.00 to P400,000.00, if the quantity is less than 5 grams.

Artificial Beings

2011-07-10T23:08:00.002+08:00

Thinking machines and artificial beings appear in Greek myths, such as Talos of Crete, the golden robots of Hephaestus and Pygmalion's Galatea. Human likenesses believed to have intelligence were built in every major civilization: animated statues were seen in Egypt and Greece. It was also widely believed that artificial beings had been created in the past. By the 19th and 20th centuries, artificial beings had become a common feature in fiction, as in Mary Shelley's Frankenstein.

But did you know that the idea of artificial beings has long been recognized and existing in almost all legal systems in the world?

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A corporation is one such artificial being. A corporation is an entity separate and distinct from its stockholders. While not in fact and in reality a person, the law treats a corporation as though it were a person by process of fiction or by regarding it as an artificial person distinct and separate from its individual stockholders.

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A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its own privileges, and liabilities distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Despite not being natural persons, corporations are recognized by the law to have rights and responsibilities like actual people. Corporations can exercise human rights against real individuals and the state, and they may be responsible for human rights violations. Just as they are "born" into existence through its members obtaining a certificate of incorporation, they can "die" when they lose money into insolvency.

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Corporations exist as a product of corporate law, and their rules balance the interests of the management who operate the corporation, creditors, shareholders, and employees who contribute their labor. In modern times, corporations have become an increasingly dominant part of economic life.

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An important feature of corporation is limited liability. If a corporation fails, shareholders normally only stand to lose their investment, and employees will lose their jobs, but neither will be further liable for debts that remain owing to the corporation's creditors.

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Corporate officers may act on such matters as may be authorized either expressly by the By-laws or Board Resolutions or impliedly such as by general practice or policy or as are implied by express powers. When officers are allowed to act in certain particular cases, their acts conformably therewith can bind the company. Hence, a corporate officer entrusted with general management and control of the business has the implied authority to act or contract for the corporation which may be necessary or appropriate to conduct the ordinary business. If the act of corporate officers comes within corporate powers but it is done without any express or implied authority therefor from the by-laws, board resolutions or corporate practices, such an act does not bind the corporation. The Board, however, acting within its competence, may ratify the unauthorized act of the corporate officer. So, too, a corporation may be held in estoppel from denying as against innocent third persons the authority of its officers or agents who have been clothed by it with ostensible or apparent authority.

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By legal fiction, a corporation has a personality separate and distinct from its officers, stockholders and members. The corporation has a separate existence and there is a veil or shroud which separates the corporation from its stockholders and members. That is why obligations incurred by the corporation are its sole liabilities, and are not the obligations of its stockholders or members. Conversely, officers of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority.

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However, there are instances when the corporate fiction or the notion that the corporation is a separate legal entity may be disregarded. Piercing the veil of corporate entity requires the court to see through the protective shroud which exempts its stockholders from liabilities that ordinarily, they could be subject to, were it not for the existing corporate fiction. But to do this, the court must be sure that the corporate fiction was misused, to such an extent that injustice, fraud, or crime was committed upon another, disregarding, thus, his, her, or its rights. It is the protection of the interests of innocent third persons dealing with the corporate entity which the law aims to protect by this doctrine.

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The mere ownership by a single stockholder of all or nearly all of the capital stock of a corporation is not of itself a sufficient reason for disregarding the fiction of separate corporate personalities.

Marriage

2011-07-10T23:06:00.000+08:00

Although the institution of marriage pre-dates reliable recorded history, many cultures have legends concerning the origins of marriage. The way in which a marriage is conducted and its rules and ramifications have changed over time, as has the institution itself, depending on the culture or demographic of the time.

One of the oldest known and recorded marriage laws is discerned from Hammurabi's Code, enacted in ancient Mesopotamia (widely considered as the cradle of civilization). Various cultures have had their own theories on the origin of marriage. One example may lie in a man's need for assurance as to paternity of his children. He might therefore be willing to pay a bride price or provide for a woman in exchange for exclusive sexual access. Legitimacy is the consequence of this transaction rather than its motivation.

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In Ancient Greece, no specific civil ceremony was required for the creation of a marriage - only mutual agreement and the fact that the couple must regard each other as husband and wife accordingly. Men usually married when they were in their 20s or 30s and expected their wives to be in their early teens. It has been suggested that these ages made sense for the Greek because men were generally done with military service by age 30, and marrying a young girl ensured her virginity. Married Greek women had few rights in ancient Greek society and were expected to take care of the house and children.

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There were several types of marriages in ancient Roman society. The traditional ("conventional") form called conventio in manum required a ceremony with witnesses and was also dissolved with a ceremony. In this type of marriage, a woman lost her family rights of inheritance of her old family and gained them with her new one. She now was subject to the authority of her husband. There was the free marriage known as sine manu. In this arrangement, the wife remained a member of her original family; she stayed under the authority of her father, kept her family rights of inheritance with her old family and did not gain any with the new family. The minimum age of marriage for girls was 12.

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In the Philippines, for most Filipinos, marriage used to be governed by the Civil Code. Now it is governed by the Executive Order No. 209 known as the Family Code, which took effect on August 4, 1988. The very first article of the Family Code defines marriage, in the following words: "Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code."

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The next Article provides the essential requisites of marriage, without which the marriage will be void:(1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. Note: it must be between male and female. In Article 5 it is also provided that the minimum age for marriage for either male or female is 18 years of age.

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Same-sex marriage is not recognized in the Philippines. While it is a relatively new practice that same-sex couples are being granted the same form of legal marital recognition as commonly used by mixed-sex couples, recent publicity and debate over the past decade gives an impression that civil marriage for lesbian and gay couples is novel and untested. There is a long history of recorded same-sex unions around the world. It is believed that same-sex unions were celebrated in Ancient Greece and Rome, some regions of China, such as Fujian, and at certain times in ancient European history. A law in the Theodosian Code (C. Th. 9.7.3) issued in 342 CE prohibited same-sex marriage in ancient Rome, but the exact intent of the law and its relation to social practice is unclear, as only a few examples of same-sex marriage in that culture exist.

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Aside from the essential requisites of marriage, there are also formal requisities, which are: (1) Authority of the solemnizing officer; (2) A valid marriage license (subject to certain exceptions); and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that take each other as husband and wife in the presence of not less than two witnesses of legal age.

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Absence of any of the essential or formal requisites shall generally render the marriage void from the very beginning (meaning, it cannot even be ratified). Article 5 provides that

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Muslim marriage and divorce, on the other hand, are governed by Presidential Decree No. 1083, known as the "Code of Muslim Personal Laws of the Philippines", issued on February 4, 1977, which recognizes Islamic rules on persons and family relations and marriage as legally valid. The rules are different. For instance, any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or upwards are already qualified to marry. A female is presumed to have attained puberty upon reaching the age of fifteen.

Jury Trial

2011-07-10T23:05:00.000+08:00

A jury trial (or trial by jury) is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is distinguished from a bench trial, in which a judge or panel of judges make all decisions. The Philippines is one such country which adopts a bench trial in court proceedings.

A jury is a sworn body of people (usually numbering 12) convened to render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to judge whether an accused person is not guilty or guilty of a crime. (There is no such verdict as 'innocent'). A person who is serving on a jury is a juror.

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Rebellious English barons forced the despotic and cash-strapped King John to approve the Magna Carta in 1215 at Runnymede, southwest of London, near where Windsor castle stands today. One of its articles says that no freeman shall be imprisoned, deprived of property, exiled, or destroyed, except by the lawful judgment of his peers (equals) or by the law of the land. The idea of due process of law, including trial by jury, is said to have developed from this.

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English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right that allows the accused to choose whether to be judged by judges or a jury. In the United States every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury. Juries usually weigh the evidence and testimony to determine questions of fact, while judges usually rule on questions of law.

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In most common law jurisdictions, the jury is responsible for finding the facts of the case, while the judge determines the law. These "peers of the accused" are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions. Typically, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge. An interesting innovation was introduced in Russia in the judicial reform of Alexander II: unlike in modern jury trials, jurors decided not only whether the defendant was guilty or not guilty, but they had the third choice: "Guilty, but not to be punished", since Alexander II believed that justice without morality is wrong.

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There has been much debate about the advantages and disadvantages of the jury system, the competence or lack thereof of jurors as fact-finders, and the uniformity or capriciousness of the justice they administer. The jury has been described as "an exciting and gallant experiment in the conduct of serious human affairs." As fact-finders, juries are expected to fulfill the role of lie detector. In countries where jury trials are common, juries are often seen as an important check against state power. Other common assertions about the benefits of trial by jury is that it provides a means of interjecting community norms and values into judicial proceedings and that it legitimizes the law by providing opportunities for citizens to validate criminal statutes in their application to specific trials. It has also been claimed that jury trials educate citizens about self-government. Many also believe that a jury is likely to provide a more sympathetic hearing, or a fairer one, to a party who is not part of the government - or other establishment interest - than would representatives of the state. Of course, one strong argument in favor of the jury system is that it is harder to dupe 12 jurors to believe a lie, than 1 judge.

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On the other hand, one issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of excessive force in the violent beating of a black man by a jury consisting mostly of whites without any black jurors, despite an incriminating videotape of the action. This led to widespread questioning about the case and riots ensued. Another objection against jury trials is that it is discomforting to put the liberty and future of an accused in the hands of 12 men who might have had no training at all in the appreciation of evidence.

Let’s have a break

2011-07-10T23:04:00.000+08:00

Some people I know told me that my columns are all too stiff-necked and serious. Well, when one talks about the law, as I do, one cannot help but be serious. You know, one goes to jail when one breaks the law. But talking about the lawyer, instead of the law, is another thing. So, I borrowed some lawyer jokes which I think will lighten up this corner - at least this once. And, hopefully, this will dispel suspicions that I am made of stone, instead of flesh and bones.

Q: If you are stranded on a desert island with Frankenstein, Dracula, and a lawyer, and you have a gun with only two bullets, what do you do?
A: Shoot the lawyer twice.

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Q: How can you tell when a lawyer is lying?
A: His lips are moving.

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Q: What happened then?
A: He told me, he says, "I have to kill you because you can identify me."
Q: Did he kill you?

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Q:: Now then, Mrs. Pantino, how was your first marriage terminated?
A: By death.
Q: And by whose death was it terminated?

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Q: Do you know how far pregnant you are now?
A: I'll be three months on March 12th.
Q: Apparently then, the date of conception was around January 12th?
A: Yes, sir.
Q: What were you doing at that time?
(Note: Your guess is as good as mine)

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Q: Mrs. Panti, do you believe you are emotionally stable?
A: I used to be.
Q: How many times have you committed suicide?

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A man who had been caught embezzling millions from his employer went to a lawyer seeking defense. He didn't want to go to jail. But his lawyer told him, "Don't worry. You'll never have to go to jail with all that money." And the lawyer was right. When the man was sent to prison, he didn't have a centavo.

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A man went to a brain store to get some brain to complete a study. He sees a sign remarking on the quality of professional brain offered at this particular brain store. He begins to question the butcher about the cost of these brains.
"How much does it cost for engineer brain?"
"Five hundred pesos per 10 grams."
"How much does it cost for programmer brain?"
"One thousand pesos per 10 grams."
"How much for lawyer brain?"
"P10,000 per 10 grams."
"Why is lawyer brain so much more?"
"Do you know how many lawyers we had to kill to get a gram of brain?"

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A lawyer friend of mine swears that this next one actually happened in the direct examination of a complainant for rape:
Atty: Where were you raped?
(Witness points to a portion of her anatomy below the belt)
Atty: No, no, that is not what I mean. In what place or municipality was the rape committed?

The law on dual citizenship

2011-07-10T22:59:00.002+08:00

Republic Act No. 9225 which was approved on August 29, 2003 does away with the provision in Commonwealth Act No. 63104[5] which takes away Philippine citizenship from natural-born Filipinos who become naturalized citizens of other countries. R. A. 9225 allows dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of their naturalization as citizens of a foreign country.

Section 2 of the law allows all Filipinos, either natural-born or naturalized, who become foreign citizens, to retain their Philippine citizenship without losing their foreign citizenship. Section 3 permits dual citizenship because said law allows natural-born citizens of the Philippines to regain their Philippine citizenship by simply taking an oath of allegiance without forfeiting their foreign allegiance.

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The law further provides that the unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship under RA 9225 shall be deemed citizens of the Philippines.

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Those who retain or re-acquire Philippine citizenship under RA 9225 shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: provided, that they renounce their oath of allegiance to the country where they took that oath; (4) those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice.

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The right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

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There is no provision in R.A. 9225 requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. Thus, R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.

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Our Supreme Court has ruled that when a person with dual citizenship files a certificate of candidacy, this already constitutes as a renunciation of foreign citizenship. In these cases, the Court made an important distinction between "dual citizenship" and "dual allegiance." Dual citizenship is the result of the application of the different laws of two states, whereby a person is simultaneously considered a national by the said states. Dual allegiance, on the other hand, arises when a person simultaneously owes his loyalty to two or more states by undertaking a positive act. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. Thus, Article IV, Section 5 of the Constitution provides that: "Dual allegiance of citizens is inimical to national interest and shall be dealt with by law." In the cases involving candidates with dual citizenship, the candidates whose qualifications are being challenged became citizens of another state without performing another act. They have Filipino parents, became citizens of the foreign state where they were born under the principal of jus soli and had not taken an oath of allegiance to said foreign state.

The Law on Probation

2011-07-10T22:58:00.002+08:00

Prisoners in the country’s jails have to be fed, clothed, taken cared of, and subjected to rehabilitation programs which constitute an onerous drain on the financial resources of the country. To provide a less costly alternative to the imprisonment of offenders who are likely to respond to individualized, community-based treatment programs, then President Ferdinand E. Marcos issued on July 24, 1976 Presidential Decree No. 968 known as the Probation Law of 1976.

"Probation" is a disposition under which an accused, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. What the law gives more importance to is the offender, not the crime. The inquiry is more on whether probation will help the offender along the lines for which the probation system has been established, such as giving the first-time offender a second chance to maintain his place in society through a process of reformation, which is better achieved, at least as to one who has not committed a very serious offense, when he is not mixed with hardened criminals in an atmosphere not conducive to soul-searching as within prison walls. The consciousness of the State's benignity in giving him that second chance to continue in peaceful and cordial association with his fellowmen will advance, rather than retard, the process of reformation in him.
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Under PD 968, the court may, after it shall have convicted and sentenced an accused and upon application of said accused, suspend the execution of said sentence and place the accused on probation for such period and upon such terms and conditions as it may deem best. An application for probation shall be filed with the trial court. A convict who files a petition for probation during the period to appeal automatically waives his right to appeal and therefore his conviction becomes final because under PD 968 the filing of the application shall be deemed a waver of the right to appeal.

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The following are disqualified from availing of the benefits of probation: (a) those sentenced to serve a maximum term of imprisonment of more than six years; (b) those convicted of any offense against the security of the State; (c) those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos; (d) those who have been once on probation under the provisions of PD 968; and (e) those who are already serving sentence at the time the substantive provisions of PD 968 became applicable.

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The main criterion laid down by the Probation law in determining who may be granted probation is based on the penalty imposed and not on the nature of the crime. By the relative lightness of the offense, as measured by the penalty imposed, more than by its nature, as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom, as the more dangerous type of criminals should be.

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In determining whether an offender may be placed on probation, the court considers all information relative to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that: (a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (b) there is undue risk that during the period of probation the offender will commit another crime; or (c) probation will depreciate the seriousness of the offense committed.

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Every probation order issued by the court shall contain conditions requiring that the probationer shall: (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; (b) report to the probation officer at least once a month at such time and place as specified by said officer.

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The court may also require the probationer to: (a) cooperate with a program of supervision; (b) meet his family responsibilities; (c) devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; (d) undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; (e) pursue a prescribed secular study or vocational training; (f) attend or reside in a facility established for instruction, recreation or residence of persons on probation; (g) refrain from visiting houses of ill-repute; (h) abstain from drinking intoxicating beverages to excess; (i) permit to probation officer or an authorized social worker to visit his home and place or work; (j) reside at premises approved by it and not to change his residence without its prior written approval; or (k) satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

Due Process of Law

2011-07-10T22:57:00.005+08:00

Daniel Webster was an attorney who also served as a Senator in the United States Senate. Primarily recognized for his Senate tenure, Webster was a key figure in the institution's "Golden days". So well-known was his skill as a Senator throughout this period that Webster became the northern member of a trio known as the "Great Triumvirate", with his colleagues Henry Clay from the west and John C. Calhoun from the south. His "Reply to Hayne" in 1830 was generally regarded as "the most eloquent speech ever delivered in Congress." Daniel Webster is also famous for explaining what due process of law is. According to him in his argument in the Dartmouth College case, due process of law is the law of the land, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. "The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society."

Though the words "due process of law" does not have a very long history, the doctrine implied by them has history in Anglo-American law which extends for more than seven hundred years—back, indeed, to the signing of the Magna Charta. And yet, notwithstanding this long period during which countless opportunities have presented themselves for its application and judicial definition, the exact meaning of "due process of law" has yet to be defined.

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It would appear, then, that a complete knowledge of the meaning of the doctrine of due process of law can be obtained only by a study of every case in which its application has been sought. "The historical antecedents of the phrase 'due process of law' may be clearly traced back to the expression per legem terrae as it occurs in the Charter wrung by the Barrons from King John. The 39th chapter of that document provides that ‘no freeman shall be taken or imprisoned, or disseized, or outlawed, or exiled, or in any way destroyed; nor shall we go upon him or send upon him, but by lawful judgment of his peers or by the law of the land’ (per legem terrae). The phrases 'due process of law' and 'the law of the land' had come to be synonymous, both indicating, that the guaranty insisted upon was that persons should not be imprisoned except upon due indictment, or without an opportunity on their parts to testify the legality of their arrest and detention, and that their property should not be taken except in proceedings conducted in due form in which fair opportunity was offered to the one claiming ownership or right to possession to appear and show cause, if any, why the seizure should not be made.

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In American practice, the exact phrase 'due process of law' was not employed in any of the eleven State constitutions adopted prior to the Federal Constitution, but that it early found expression in substance, if not in very words, in those instruments. The very words do, however, appear in the Declaration of Rights of the State of New York, adopted in 1777, and in one of the amendments proposed by that State to the Federal Constitution as drafted by the Constitution of the United States, adopted in 1791. That amendment provides, inter alia, that 'nor shall any person . . . be deprived of life, liberty or property, without due process of law.'

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Our concept of due process – as well as most of the other rights guaranteed under Article III of our constitution (the Bill of Rights) -- has its roots in American constitutional law. The very first section of Article III of the Philippine Constitution provides: "Sec.1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."

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The constitution, in declaring that no State shall deprive any person of life, liberty or property without due process of law, nor to deny any person within its jurisdiction the equal protection of the laws, undoubtedly intended, not only that there should be no arbitrary deprivation of life, liberty or arbitrary spoliation of property but the equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights. All persons should be equally entitled to pursue their happiness and acquire and enjoy property. They should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts. No impediment should be interposed to the pursuits by anyone except as applied to the same pursuits by others under like circumstances. In the administration of criminal justice no different or higher punishment should be imposed upon one that such as is prescribed to all for like offenses.

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As seen, the requirement as to due process includes the guarantee of equal protection of the laws. The State should have no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious and discriminations against persons or classes are still more so. This is because equality of rights, privileges, and capacities should unquestionably be the aim of the law.

The presumption of innocence

2011-07-10T22:57:00.002+08:00

In medieval times, no civil or criminal plea should be decided against a freeman until he had been given the opportunity to furnish the customary "proof" which the law, as it then stood, recognized and permitted him to offer. This proof might be by battle, or ordeal, or by compurgation. Whatever form it might assume it was technically known as the law (lex), that is, as a test according to which the defendant's claim was to be upheld or denied. Thus, a man might prove his innocence by beating his opponent in battle.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

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Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience. In some cases, the accused was considered innocent if they survived the test, or if their injuries healed; in others, only death was considered proof of innocence. (If the accused died, they were often presumed to have gone to a suitable reward or punishment in the afterlife, which was considered to make trial by ordeal entirely fair.) In medieval Europe, the trial by combat, trial by ordeal was considered a judicium Dei: a procedure based on the premise that God would help the innocent by performing a miracle on their behalf. Trial by ordeal was surprisingly effective at sorting the guilty from the innocent. Because defendants were believers, only the truly innocent would choose to endure a trial; guilty defendants would confess or settle cases instead. Therefore, the theory goes, church and judicial authorities would routinely rig ordeals so that the participants-presumably innocent-could pass them. If this theory is correct, medieval superstition was actually a useful motivating force for justice.

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Trial by compurgation is a method of trial in which an accused person could summon a specified number of people, usually 12, to swear to their belief in his or her innocence. The obvious fault of this system was that the beliefs of the people summoned by the accused may not be based on any evidence at all.

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Fortunately, from such bizarre practices evolved modern concepts of justice. Now, the guilt or innocence of an accused is determined only after hearing the evidence against him before a court which is presided by an impartial judge or jury. Courts are mandated to base their conclusions only upon properly adduced evidence, limiting it to what is immediately relevant to the issue in dispute, and allowing evidence to be given only by those qualified to give it -- that is, with some exceptions, to those who can say they have seen something, heard something, tasted something, felt something, smelt something, which will assist the court in coming to a decision.

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Also, in most of the civilized world, the accused has in his favor the presumption of innocence. In the Philippines, the Constitution provides in Section 14[1], of Article III (the Bill of Rights) that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.

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Because of the presumption of innocence in favor of the accused, suspicion no matter how strong, cannot be a basis for conviction. The prosecution must rely on the strength of its evidence and not on the weakness of the defense. The accused need not prove his innocence because that is presumed. Consequently, if the evidence adduced by the prosecution does not establish the guilt of the accused beyond reasonable doubt, the accused need not adduce any evidence in his favor to secure a judgment of acquittal. The presumption of innocence continues until sufficient evidence is introduced to overcome his presumed innocence, and his guilt is established.

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In criminal cases, the burden of proof as to the offense charged lies on the prosecution. As the accused has in his favor the constitutional presumption of innocence, the quantum of proof that will warrant a verdict of guilt must be strong enough to erase any reasonable doubt as to his culpability. Every circumstance against guilt and in favor of innocence must be considered. Conviction can be had only by proof beyond reasonable doubt which requires moral certainty, "a certainty that convinces and satisfies the reason and conscience of those who are to act upon it' may the presumption of innocence be overcome."

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But why is it that there seems to be so many safeguards in favor of an accused? The reason lies in the fact that a crime is considered to be an offense not only against the offended party, but against the whole state. Thus, whenever a crime is prosecuted, the title or caption of the case reads: "The People of the Philippines versus (name of accused)". As seen, the accused is confronted with the full might of state authority - he is alone against the 90 million people of the Philippines. To lighten the heavy odds against him, he is accorded the presumption of innocence. Thus, the evidence of the prosecution must be strong per se (by itself) to pierce that shield of presumptive innocence and establish the guilt of the accused beyond a reasonable doubt; otherwise, he should be acquitted.

Freedom of Religion

2011-07-10T22:56:00.002+08:00

Religion is the belief in and worship of a god or gods, or any such system of belief and worship, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.

Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any religion. Freedom of religion is considered by many people and nations to be a fundamental human right. Thomas Jefferson said (1807) "among the inestimable of our blessings, also, is that ...of liberty to worship our Creator in the way we think most agreeable to His will; ..."

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It is said that the Philippines was colonized by Spain through the use of the sword and the cross. Thus, religion was as instrument in subjugating Filipinos. Not surprisingly, therefore, when the Philippines was still under Spain, Roman Catholicism was the state religion. The union of the Church and the State generated a lot of abuses and resentment. And so, when the Katipuneros established their own government after their ill-fated revolution against Spain, Article 5 of the Malolos Constitution provided for freedom and equality of religious worship as well as the separation of church and state. But, as it turned out, the Philippines was not yet to be free. The United States of America snatched the Filipinos’ freedom away from them, and the Philippines, once again, became the colony of a foreign power.

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Fortunately, America espoused more libertarian ideas than Spain. The modern legal concept of religious freedom as the union of freedom of belief and freedom of worship with the absence of any state-sponsored religion, originated in the United States of America. Religious Liberty has been interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish and carry on missionary activities; and freedom to organize with others, and to acquire and hold property, for these purposes.

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The change of sovereignty from Spain to the United States of America and the enactment of the fourteenth paragraph of section 5 of the Philippine Bill caused the complete separation of church and state, and the abolishment of all special privileges and of restrictions theretofore conferred or imposed upon any particular religious sect. All became equal in the eyes of the law, and those articles of the Penal Code defining special crimes against that denomination, which, under the former sovereign, was the state religion, as well as legal provisions defining crime against all others than that religion, have necessarily become inoperative.

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President William McKinley's Instructions to the Second Philippine Commission directed "that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever or allowed." The same statement of the eternal nature of the freedom is found in the Philippine Bill in 1902 and in the Philippine Autonomy Act of 1916, more popularly known as the Jones Law.

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At present, Section 5, Article III of the Constitution (Bill of Rights) provides: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."

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The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus religious freedom embraces two concepts — freedom to believe and freedom to act. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.

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The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul — in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes.

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But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.

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Accordingly, while one has full freedom to believe in Satan, he may not offer the object of his piety a human sacrifice, as this would be murder. Those who literally interpret the Biblical command to "go forth and multiply" are nevertheless not allowed to go around and have sex with anybody he pleases in violation of the laws against chastity. A person cannot refuse to pay taxes on the ground that it would be against his religious tenets to recognize any authority except that of God alone. An atheist cannot express his disbelief in acts of derision that wound the feelings of the faithful. The police power can be validly asserted against the Indian practice of the suttee born of deep religious conviction, that calls on the widow to immolate herself at the funeral pyre of her husband.

The legend of Robin Hood

2011-07-10T22:55:00.000+08:00

Robin Hood is a heroic outlaw in English folklore. A highly skilled archer and swordsman, he is known for "robbing from the rich and giving to the poor," assisted by a group of fellow outlaws known as his "Merry Men." Traditionally in films, Robin and many of his men are depicted wearing Lincoln green clothes. Some accounts give the colour worn by Robin as scarlet, which may provide an explanation for the name "Robin." Robin Hood became a popular folk figure starting in medieval times continuing through modern literature, films, and television. In the earliest sources Robin Hood is a commoner, but he was often later portrayed as an aristocrat wrongfully dispossessed of his lands and made into an outlaw by an unscrupulous sheriff.

The origin of the legend is claimed by some to have stemmed from actual outlaws, or from tales of outlaws, such as Hereward the Wake, Eustace the Monk, Fulk FitzWarin, and William Wallace. Hereward appears in a ballad much like Robin Hood and the Potter, and as the Hereward ballad is older, it appears to be the source. The ballad Adam Bell, Clym of the Cloughe and Wyllyam of Cloudeslee runs parallel to Robin Hood and the Monk, but it is not clear whether either one is the source for the other, or whether they merely show that such tales were told of outlaws. There are a number of theories that attempt to identify a historical Robin Hood. A difficulty with any such historical search is that "Robert" was in medieval England a very common given name, and "Robin" (or Robyn) especially in the 13th century was its very common diminutive. The surname "Hood" (or Hude or Hode etc.), referring ultimately to the head-covering, was also fairly common. Unsurprisingly, therefore, there are a number of people called "Robert Hood" or "Robin Hood" to be found in medieval records. Some of them are on record for having fallen foul of the law but this is not necessarily significant to the legend.

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The first clear reference to "rhymes of Robin Hood" is from the late 14th-century poem Piers Plowman, but the earliest surviving copies of the narrative ballads which tell his story have been dated to the 15th century or the first decade of the 16th century. In these early accounts Robin Hood's partisanship of the lower classes, his Marianism and associated special regard for women, his outstanding skill as an archer, his anti-clericalism, and his particular animus towards the Sheriff of Nottingham are already clear. Little John, Much the Miller's Son and Will Scarlet (as Will "Scarlok" or "Scathelocke") all appear, although not yet Maid Marian or Friar Tuck. It is not certain what should be made of these latter two absences as it is known that Friar Tuck, for one, has been part of the legend since at least the later 15th century.

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In popular culture, Robin Hood and his band of merry men are usually portrayed as living in Sherwood Forest, in Nottinghamshire, where much of the action in the early ballads takes place. So does the very first recorded Robin Hood rhyme, four lines from the early 15th century, beginning: "Robyn hode in scherewode stod." In modern versions of the legend, Robin Hood is said to have taken up residence in the verdant Sherwood Forest in the county of Nottinghamshire. For this reason the people of present-day Nottinghamshire have a special affinity with Robin Hood, often claiming him as the symbol of their county. For example, major road signs entering the shire depict Robin Hood with his bow and arrow, welcoming people to 'Robin Hood County.' BBC Radio Nottingham also uses the phrase 'Robin Hood County' on its regular programmes. The Robin Hood Way runs through Nottinghamshire and the county is home to literally thousands of other places, roads, inns and objects bearing Robin's name.

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Specific sites linked to Robin Hood include the Major Oak tree, claimed to have been used by him as a hideout, Robin Hood's Well, located near Newstead Abbey (within the boundaries of Sherwood Forest), and the Church of St. Mary in the village of Edwinstowe, where Robin and Maid Marian are historically thought to have wed. To reinforce this belief, the University of Nottingham in 2010 has begun the Nottingham Caves Survey with the goal "to increase the tourist potential of these sites". The project "will use a 3D laser scanner to produce a three dimensional record of more than 450 sandstone caves around Nottingham".

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The legend of Robin Hood has, to some extent, influenced the way we act. Some criminals "rob from the rich and give to the poor" Robin Hood style. This endears them to the masses who, in some instances, will take pains in protecting said criminals from the clutches of the law. Even some politicians have taken advantage of this psychological oddity. They steal from the government ("the rich") and give to the impoverished masses (of course, retaining most of the loot). And the people regard them as saints. To be sure, we have a lot of rethinking to do about our present-day culture and our values as a people.