Talk About Philippine Laws and Jurisprudence

Law Reform Advocacy In Promoting Industrial Peace In The Private Security Sector

2022-10-04T01:16:00.000-07:00

Industrial peace within the private security sector.

This is the main objective of the Philippine Association of Detective and Protective Agency Operators (PADPAO), under the leadership of Mr. Ramon Bergado and its consultant Mr. Alex P. Montañez. They were assisted by their legal counsel Atty. Evelyn De Matias, who drafted the proposed labor advisory to clarify the guidelines of Department Order 150, series of 2016 (Revised Guidelines Governing The Employment and Working Conditions of Security Guards And Other Private Security Personnel In The Private Security Industry) in relation to Republic Act 5487 (An Act To Regulate The Organization and Operation of Private Detective, Watchmen or Security Agencies).

Through a series of tripartite meetings between the employer and the labor sectors, the process of passing the proposal took almost one year and a half before it was finalized and approved by the legal department of the DOLE Bureau of Labor Relations headed by Director Ma. Consuelo Bacay. The private security sector, composed of the private security agencies, is very grateful for the issuance of the Labor Advisory No. 150, series of 2019 last December 27, 2019, through the support of former Labor Secretary Silvestre Bello III and Undersecretary Benjo Santos Benavidez.

The team went through some challenges, but Atty. De Matias hurdled the legal issues with the conviction to pursue her advocacy of improving the working conditions of security guards and promoting industrial peace in the private security industry through law reform.

Among the major highlights of the advisory include strengthening the automatic crediting provision that will not require the approval of the principal to increase the wages of the security guards in every wage rate hike, timely payment of the principal to the security agencies to ensure the timely payment of wages of the security guards and their benefits, mandatory 20% agency fee to private security agencies, and enforcing the solidary liability of the principals for the unpaid wages of the security guards.

Sonia Decena and Rey Decena v Judge Nilo Malanyaon, AM No. RTJ-10-2217, April 9, 2013

2021-01-12T21:13:00.004-08:00

"A judge may not involve himself in any activity constituting private practice of law."

FACT:

During an administrative hearing involving Dr. Malanyaon, where she was represented by her daughter, Atty. Ma. Kristina Malanyaon as her counsel, Judge Nilo Malanyaon sat down beside Atty. Ma. Kristina, his daughter during the proceedings. On several occasions, Atty. Ma. Kristina made manifestations while glancing on the paper handed by her father, Judge Malanyaon. The counsel for the complainant questioned the propriety of Judge Malanyaon to be sitting and assisting his daughter during the proceedings. Judge Malanyaon justified that he was merely assisting his daughter who just recently passed the bar. The complainant invoked that the actuation of the respondent is a conduct unbecoming of a judge in violation of the New Code of Judicial Conduct where judges are prohibited from engaging in the private practice of law or giving professional advise to the clients.

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ISSUE:

Is the respondent guilty of conduct unbecoming of a judge?

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RULING:

It was held that the act of the respondent of sitting beside his daughter on a seat reserved for lawyers during a hearing manifests the presumption and of his intention to exert influence as a judge on the case. In addition, the respondent also admitted that he needs to guide his daughter during the proceedings where he coached and advised her and also admitted that it was his filial duty to be there for his wife and daughter. His conduct constitutes private practice of a lawyer. The respondent should have restrained himself from acting the same for these are not enough reasons for his to forsake the ethical conducted expected of him as a judge.

The court also found that it was clear that the respondent engaged in a private practice of a lawyer when he coached his daughter in open court in making manifestations, posing motions, and preparing questions for his daughter to ask before the proceedings. He did so willingly and deliberately and after announcing when questioned about his presence that he is the counsel of his daughter.

It was also pointed out that a lawyer who accepts an appointment to the Bench must know that their right to practice law as a member of the Philippine Bar is suspended and shall continue throughout their tenure as a judge. Judges are subject to constant public scrutiny thus they should willingly and freely accept the restrictions on their conduct.

The respondent was therefore guilty for conduct unbecoming of a judge.

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INTER-ORIENT MARITIME INC. vs CRISTINA CANDAVA, G.R. NO. 201251, JUNE 26, 2013

2020-10-20T21:02:00.000-07:00

"Claim for death benefit is compensable when caused by an illness that is contracted in the course of employment. There is no need to show that the illness is work-related. It is enough that it occurred during the term of their contract."

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FACTS:

Joselito Candava was hired as a seafarer by Inter-Orient Maritime, Inc. for its foreign client, Tankoil Carrier Ltd. He was then deployed for a 9 months contract. Despite the expiration of his contract, he continued working at the vessel. One day, he experienced severe abdominal pain and then underwent 2 surgical procedures.He was then repatriated to the Philippines. Upon examination of the company physician, he was declared fit to work. However, his application to work again was rejected by the petitioner.

Joselito then filed a complaint on sickness wages and reimbursement of medical expenses before the NLRC. He signed a quitclaim upon payment to him the amount of P29,813.40 by the petitioner. A month later, he was diagnosed with tumor and lung carcinoma, which caused him to file another complaint for medical benefits. He then signed a quitclaim upon receipt of the amount of P77,000 from the petitioner.

Few months later, Joselito passed away with the antecedent cause of death was respiratory failure and pulmonary metastasis. His wife, respondent Cristina Candava then filed a death benefit claim from the petitioner. Petitioner, however, claimed that it already paid Joselito before and refused to give the death benefit.

This prompted the respondent to file a claim for death benefit before the NLRC with the allegation that while Joselito was not coerced to sign the quitclaim, his condition forced him to sign the same because he needs the money for treatment. She further claimed that the illness of her husband was contracted during his employment with the petitioner, thus, he is entitled to death benefits, burial assistance, damages and attorney's fees.

Petitioner claims that her claim is barred by Res Judicata through the 2 complaints previously filed by Joselito which were already dismissed through his own motion and submitted the release document executed by him.

The Labor Arbiter ruled in favor of the respondent stating that the release of Joselito of the petitioner does not bar the rights of his heirs to receive the death benefits. Moreover, the fact that the petitioner paid Joselito before is an acknowledgment that his death is compensable.

This ruling was reversed by the NLRC, however, holding that Joselito did not die during the term of his contract, and his illness was not proven to be work-related. It also ruled that the claim of the respondent is not barred by res judicata due to lack of identity in the cause of action between the claim of Joselito and Cristina. The respondent filed a motion for reconsideration but the same was denied by the NLRC. Aggrieved she filed a petition for certiorari to the Court of Appeals. The CA reversed the NLRC decision and pointed out that the petitioner failed to rebut the disputable presumption that Joselito's death was work-related. Petitioner thus filed a review before the SC.

ISSUE:

Is Joselito's death compensable?

RULING:

The Supreme Court held that there is no requirement to prove that the death of a seafarer is work-related to be compensable. It is enough to prove that he contracted the illness during the term of his contract. Neither it is required to prove that the working condition increased the risk for him to contract the illness or disease. An injury or accident is deemed to arise in the course of employment when it takes place within the term of employment and at the place where the employee is reasonably may be to perform his duties. The records show that Joselito contracted his illness during the term of his employment and there is a clear causal connection between his illness and death, therefore making his death compensable.

While his contract already expired, but the fact that he remained and continued to render services at the vessel is deemed to be a constructive renewal of his contract. The execution of his quitclaim releasing the petitioner from further liabilities is viewed by the court as a pre-designated scheme to evade payment of disability benefits. When Joselito went to submit the release document to the labor arbiter it was already signed and he was accompanied by the petitioner, adding more to the fact that such execution of the document negates voluntariness.

It has been established that the illness was contracted by Joselito during the period of his employment with the petitioner, therefore making his death compensable.

California Clothing Inc. v. Shirley Quinones, GR No. 175822, October 23, 2013

2020-10-13T03:17:00.007-07:00

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"Abuse of Rights and its elements" "Law on Human Relations"

Shirley Quinones went to shop at the Guess USA Boutique and purchased a pair of jeans. She paid the item and was issued a receipt by the store's cashier. As she walked away a store employee went after her demanding to pay the item. She told the employee she already paid it and showed her the receipt of her purchase. As the store employee insisted she forgot to pay, respondent requested they meet at her office in Cebu Pacific which is only located at the same building to talk about the concern. The respondent claimed to have been humiliated when the store employee continued to demand payment in front of Cebu Pacific's clients and even wrote a letter to her employer and HRD of Robinson's narrating the incident for the purpose of canceling her credit card.

Respondent claimed to have suffered from anxiety, sleepless nights, mental anguish, serious apprehension, fright, moral shock and social humiliation.

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The petitioner explained there was miscommunication between the employees regarding the payment made of the respondent. They alleged that they were polite in asking the respondent for some clarifications on the payment made on her items. The RTC ruled the petitioner acted in good faith believing the respondent failed to pay. The act of demanding payment is a mere exercise of their right with honest belief that no payment was made. It also finds the demand to pay made in front of Cebu Pacific's clients not damaging because it was the respondent's fault to continue their discussion at her office. The letters sent to the respondent's employee is likewise not damaging because the petitioners were merely asking assistance and not intended to humiliate or embarrass her.

The CA reversed the RTC decision. It finds bad faith when the petitioner wrote the letter to the respondent's employer who is not privy to their transactions and subjected the respondent to ridicule and humiliation. Moreover, the official receipt presented by the respondent suffice as proof of payment which does not warrant further investigation against her.

The petitioner now filed an appeal before the SC.

ISSUE

Is Quinones entitled to damages?

RULING

YES.

The complaint against the petitioners stem from the principle of abuse of rights.

As cited by the court in the case of Carpio v Valmonte, under the law on human relations, the victim of a wrongful act or omission, whether done negligently or willfully, is given a remedy or recourse to obtain relief from the damage or injury that the victim sustained.

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Our civil law is also imbued not only with the principles of equity, but also of moral precepts that are designed with certain norms that come from good conscience that guides human conduct. One of these fundamental moral precepts is the abuse of rights under Article 19 of the Civil Code that has the following elements:

(1) there is a legal right or duty

(2) which is exercised in bad faith

(3) for the sole intent of prejudicing or injuring another

ARTICLE 19 of the Civil law requires that "a person must, in the exercise of a right or duty, act in good faith." Good faith is a state of mind which is manifested by the act of an individual. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity.

Any person who acted in bad faith thus will be liable for damages.

The court recognizes the right of the petitioners to make clarification from the respondent whether payment was made or not, however, the manner of such inquiry is not proper. The exercise of a right must be made in accordance to such purpose and must not be harsh.

The court also ruled that complementing Article 19 are the following:

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Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals or good customs, or public policy shall compensate the latter for the damage.

Thus, the respondent is entitled to damages.

The 30-days Grace Period for Loans During Covid-19 Pandemic Ends on May 31, 2020

2020-07-25T02:13:00.000-07:00

Creditors were mandated to give debtors a 30-days mandatory grace period for loans that fall due during the enhanced community quarantine as so declared by Section 4(aa) of the Republic Act No. 11469, otherwise known as the Bayanihan to Health As One Act. This is premised under the economic restrictions imposed by placing the Philippines under community quarantine due to the Covid-19 pandemic.

Unfortunately, the 30-days grace period for loans will no longer apply effective June 1, 2020.

The Bangko Sentral Ng Pilipinas issued Memorandum No. M-2020-045 for the guidelines. It provides that all principals and interests that fall due on or before May 31, 2020 are still covered by the 30-days grace period. All debts, the principal and interest alike, incurred effective June 1, 2020, will no longer be entitled to the 30-days grace period and thus will be due and demandable on their due dates.

The lifting of the 30-days grace period for loans was affected by the classification of the National Capital Region to be under General Community Quarantine and other parts of the country under Modified Enhanced Community Quarantine by the IATF.

Philippine Government Issuances On Covid-19

2020-04-28T19:55:00.003-07:00

As COVID-19 strikes the Philippines, various government issuances were released beginning March 2020 COVID that changed the life of the Filipinos.

Here are some of the important government issuances that have a significant impact on the country and the way of living of its people.

MARCH 8, 2020 - Presidential Proclamation No. 922, series of 2020

President Rodrigo Duterte issued the Presidential Proclamation No. 22, series of 2020 declaring a State of Public Health Emergency throughout the entire Philippines in response to the confirmation of the Secretary of Health on the local transmission of COVID-19 in the Philippines. All government agencies and local government units (LGUs) were mandated to render full assistance and undertake appropriate response to curtail and eliminate the virus. The Secretary of Health may also call upon the PNP and other law enforcement agencies to assist in addressing the COVID-19 threat. On the other hand, residents, tourists, and establishment owners were urged to comply with lawful directives and advisories to be issued by appropriate government agencies.

MARCH 9, 2020 - Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-MEID) issued Resolution No. 10, series of 2020.

The IATF-MEID issued Resolution No. 10, series of 2020 recommending as among others the suspension of classes in all levels in Metro Manila while prohibiting mass gathering and imposing social distancing measures within the National Capital Region. It also encouraged the private sectors to provide alternative working arrangements among its employees, including social distancing at the workplace.

MARCH 12, 2020 - Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-MEID) issued Resolution No. 11, series of 2020.

The IATF-MEID issued Resolution No. 11, series of 2020 raising the Code Red Alert for COVID-19 to Sublevel 2, recommending to place the entire Metro Manila under community quarantine for thirty (30) days. It also encourages flexible working arrangements in the private sector, while mass transport continues operation. Domestic travels by land, air, and sea to and from Metro Manila will be suspended effective March 15, 2020. LGUs outside of NCR were given the discretion to suspend classes. Entry travel restriction from those traveling from countries with localized COVID-19 transmission was also imposed, except Filipino citizens, their spouse and children.

MARCH 13, 2020 - Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-MEID) issued Resolution No. 12, series of 2020.

The IATF-MEID issued Resolution No. 12, series of 2020 recommending the Social Distancing Measure within the NCR. Mass gatherings to be suspended and enhanced community quarantine will be imposed. Alternative work arrangements were encouraged within the private sectors.

MARCH 16, 2020 - Proclamation No. 929, series of 2020

President Rodrigo Duterte issued Proclamation No. 929, series of 2020 declaring a State of Calamity Throughout the Philippines due to COVID-19 for a period of six (6) months. The enhanced community quarantine will be imposed effective 12 midnight (March 17, 2020) until April 12, 2020 throughout Luzon.

A Memorandum from the Office of the Executive Secretary was also issued on the same day on guidelines for the enforcement of the ECQ which include as among others the suspension of classes, prohibition of mass gatherings, strict home quarantine, suspension of mass transport, restriction on travel by air, land, and sea, and the temporary closure of private establishments except those providing essential services.

MARCH 17, 2020 - Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-MEID) issued Resolution No. 13, series of 2020.

The IATF-MEID issued Resolution No. 13, series of 2020 on the guidelines for the implementation of the Enhanced Community Quarantine over Luzon. Among the recommendations include the preparedness of the National Disaster Risk Reduction and Management Council (NDRRMC) for the worst-case scenario and to develop a recovery plan. It also provides some modifications to the Memorandum issued by the Executive Secretary last March 16, 2020. Hotels and similar establishments were not allowed to operate with some exemptions.

MARCH 19, 2020 - DTI Memorandum Circular No. 202-06

The DTI issued M.C. No. 202-06 to provide the guidelines on the establishments that are considered as essentials to avoid hampering the movement of cargo and transit of personnel of the said business establishments. The covered enterprises include all manufacturers of food and essential products, medicine, medical supplies; retail establishments (groceries, supermarkets, convenience stores, drug stores, and pharmacies; Export companies and BPOs. Employees of the said companies are required to present a valid company ID, proof of residence, and Certificate of Employment.

The DTI also issued Memorandum Circular No. 2020-07 that limits the sale and purchase of certain goods while freezing the prices of the basic necessities to its prevailing price.

MARCH 20, 2020 - Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-MEID) issued Resolution No. 14, series of 2020.

The IATF-MEID issued Resolution No. 14, series of 2020 canceling the Visas issued to foreigners, accommodation of distressed OFWs and exemptions to the ECQ as among others.

MARCH 21, 2020 - DILG issued Memorandum Circular No. 2020-062

The Circular provides guidelines to the LGUs regarding the implementation of the ECQ and State of Public Health Emergency due to the COVID-19 threat. Among the general guidelines declared that:

a. All LGUs, being charged with the promotion of health and safety within their jurisdiction, are to take the lead in the prevention and control of the spread of the COVID-19 at the local level.

b. Local Chief Executives must remain present in their areas of jurisdiction and all local officials, being frontliners in times of crises, are banned from traveling outside of the area.

c. LGUs must adhere to the guidelines and not overextend its implementation, nor deliberately leave out its explicit provisions.

d. LGUs must organize their Barangay Health Emergency Response Teams (BHERTs) by managing persons under investigation (PUIs) and those who came in contact with them.

e. LGUs shall establish checkpoints.

f. Local chief Executives must monitor the prices of items of necessity.

g. LGUs shall enforce the prohibition on mass gatherings.

h. LGUs shall not use DepEd schools as quarantine or isolation areas unless otherwise allowed by DepEd.

MARCH 23, 2020 - Administrative Order No. 26, series of 2020

The Office of the President authorized the grant of Hazard Pay to all government personnel who physically report for work during the implementation of ECQ.

MARCH 24, 2020 - Republic Act No. 11469 or the “Bayanihan to Heal As One Act,”

President Rodrigo Duterte signed the Bayanihan Act of 2020 enacted by the Philippine legislature giving the President special powers to respond to the COVID-19 situation in the country. The law mandates the executive branch to provide or carry-out the following, among others:

a. Emergency subsidy to 18million low income households for two (2) months not exceeding Php8,000;

b. Special Risk Allowance to public health workers;

c. Medical benefit to public and private health workers in case of exposure to work-related injury or disease;

d. Exposure compensation of Php100,000 and death benefit of Php1,000,000 to public and private health workers;

e. Enforcement of measures to protect the people from economic manipulations, such as hoarding, profiteering, injurious speculations, manipulation of prizes, product deceptions, cartels and monopolies or other combinations in restraint of trade that affect the supply, distribution and movement of food, clothing, hygiene and sanitation products, medicine and medical supplies, fuel, fertilizers, chemicals, building materials, implements, machinery, equipment and spare parts required in agriculture, industry and other essential services, and other articles of prime necessity, whether imported or locally produced or manufactured;

f. Hiring of temporary medical and allied medical staff to complement or supplement the current health workforce;

g. Availability of credit to the productive sectors of the economy in the countryside;

h. Liberalize incentives for the manufacture or importation of critical or needed healthcare equipment or supplies;

i. Adopt measures necessary to minimize disruption to the supply chain for basic commodities and services and ensure availability of essential goods, such as food and medicine;

j. Regulate and limit the operation of all sectors of transportation through land, sea or air, whether private or public;

k. Regulate traffic on all roads, streets and bridges, as well as prohibit and remove encroachments and illegal construction in public places;

l. Authorize alternative working arrangements for employees and workers;

m. Conserve and regulate the distribution and use of power, fuel, energy and water, and ensure their adequate supply;

n. Direct all unobligated allotments and savings from appropriated programs, projects or activities of any agency in the Executive branch, including GOCCs, in the 2019 and 2020 budget, whether released and unreleased, as well as reprogram, reallocate and realign from savings on other items of appropriation in the 2020 budget of the Executive department, to respond to COVID-19 emergency including social amelioration for affected communities, and the recovery of areas, sectors and industries severely affected;

o. Authority of the President to allocate cash, funds and investments, including unutilized or unreleased subsidies and transfers held by GOCCs or any national government agency;

p. Move deadlines for the payment of taxes, fees and other charges, and the timeliness for the filing and submission of any document, required by law;

q. Direct all banks, quasi-banks, financing companies, lending companies and other financial institutions, public and private, including GSIS, SSS, PAG-IBIG Fund, to grant a 30-day grace period for the payment of EVERY loan without incurring interests, penalties, fees and other charges;

r. Granting a minimum of 30-day grace period on residential rents without incurring interests, penalties, fees and other charges; and

s. Pantawid Pamilya Pilipino Program, whether in cash or non-cash.

The IATF also passed Resolution No. 15 on the same day directing the Philippine Charity Sweepstakes Office (PCSO) to transfer about Php420million to the Philippine Health Insurance Corporation to cover COVID-19 related packages.

March 27, 2020 - DILG issued Memorandum Circular No. 2020-063

The MC provides the guidelines on the Management of Human Remains for Patient Under Investigation (PUI) and Confirmed COVID-19 cases.

March 28, 2020 - Joint Memorandum Circular No. 1-2020 jointly signed by the Secretaries of DSWD, DOLE, DTI, DA, DBM, DOF and DILG.

The MC provides special guidelines on the Social Amelioration Measures to mitigate the socio-economic impact of COVID-19 health crisis especially to the most affected individuals, families and communities of the areas under ECQ.

The beneficiary/ies of these programs are:

(1) senior citizens; (2) persons with disability; (3) pregnant/lactating women; (4) solo parents; (5) overseas Filipinos in distress; (6) underprivileged sector and homeless families, indigenous people, and other vulnerable groups; (7) workers in the informal sector/self-employed individuals; (8) employers; and (9) rice farmers.

April 6, 2020 - Administrative Order No. 28, series of 2020

It grants the special risk allowance to frontline public health workers during the period of ECQ.

April 7, 2020 - Memorandum from the Executive Secretary

It issues the directive on the extension of the ECQ over the entire Luzon until April 30, 2020.

April 28, 2020 - IATF Resolution No. 29, series of 2020

The Resolution identifies the areas to be placed on ECQ until May 15, 2020 as follows:

- NCR

- Region III except the province of Aurora

- Region IV-A (Calabarzon)

- Province of Pangasinan

- Province of Benguet

- Baguio City

- Province of Iloilo

- Province of Cebu

- Cebu City

- Davao City

The places not covered by the ECQ will be placed on General Community Quarantine.

STAY SAFE EVERYONE!

Speedy Justice on Continuous Trial Soon to Roll in Philippine Courts Nationwide

2017-07-18T22:54:00.000-07:00

The Philippine Courts are undoubtedly clogged with innumerable pending cases before it which leads to the adage that justice delayed is justice denied. Indeed the Supreme Court acknowledges that about seventy seven (77%) of all cases pending before the Philippine Courts are criminal cases, thus in its Resolution A.M. No. 15-06-10-SC issued on June 30, 2015, it approved the recommendation of the Chairman of the Special Committee on Speedy Trial on the Proposed Guidelines for Continuous Trial of Criminal Cases in different pilot courts that took effect on August 17, 2015.

The designated pilot courts include Metropolitan trial courts, Regional trial courts, Drug courts and Family courts of Makati City, Manila City, Quezon City, and Marikina City; Metropolitan trial courts, Regional trial courts, and Drug courts of Pasig City; Metropolitan trial courts and Regional trial courts of Pasay City; Metropolitan trial courts of Paranaque City; and the Regional trial courts and Family courts of Muntinlupa City.

The main principle of the Continuous Trial is to help declog the court dockets and to expedite the resolution of criminal cases. After the successful pilot testing of Continuous Trial on the above-mentioned first and second level courts within Metro Manila, the continuous trial system will soon be implemented sometime in September 2017 across all Philippine courts nationwide. The new rule on speedy trial shall apply to the newly filed criminal cases which likewise cover special laws and rules in the first and second level courts, the Court of Tax Appeals and the Sandiganbayan.

Among the pertinent goals on the implementation of the Continuous Trial System are the termination of drug related cases within 60 days from the start of the trial with stringent prohibition on motion for postponement except on reasonable grounds and to trim down the length of trial duration in criminal cases that usually drag on for many years. It also requires the promulgation of judgment within 90 days. Hearing on motions, pre-trial, arraignment and the promulgation of judgments shall be made every Friday morning. Trial hearings are to be held every Monday to Thursday that should begin exactly at 8:30 in the morning and 2:00 in the afternoon.

It can be noted that this initiative in the justice system in the Philippines is in response to the findings of the American Bar Association Rule of Law Initiative on its project testing analysis conducted in 2015 providing that special procedural and case management reforms have a significant impact in reducing the processing time and resolution of cases. The Asia Foundation affirmed said findings in its report in 2016 showing that there is a significant improvement on the reduction in the duration of criminal proceedings with improvements in the compliance of trial courts on the timeline and periods set in the Rules of Court and laws.

It is one of Chief Justice Sereno’s advocacies to speed up the course of criminal proceedings in all Philippine courts and to support the efficient implementation of Justice on Wheels project. The Continuous Trials is just one among the several revolutionary initiatives introduced in the Philippine justice system to expedite trial proceedings which include the implementation of the Judicial Affidavit Rule in 2012 and the electronic court or eCourt program in 2013 that improved the case management and docket disposition among designated eCourts. The Hustisyeah project was also launched in 2013 with pilot courts in Quezon City which is a court decongestion program that deploys case decongestion officers nationwide to help reduce the dockets among 460 beneficiary courts.

Considering the noble purpose of the Continuous Trial to give life to the spirit of the Constitutional rights of an accused for a speedy trial, this soon to be implemented system on speedy justice provides a comforting welcome among the members of the judiciary and all its stakeholders. However, there are challenges that the justice system needs to address for the efficient implementation of the Continuous Trial system which includes filling up vacant position of judges in different courts and the subjective appreciation of judges on what is reasonable in ruling on motion for postponements as among many others.

Philippine Law School Admission Test (PhilSAT) – Uniform Admission to Law School

2017-03-02T07:47:00.003-08:00

If you are an aspiring lawyer and is due to enroll in any law school in the Philippines this coming school year 2017-2018, you are among the thousands of examinees vying to pass the pilot test for a unified admission policy for all law schools. The Philippine Law School Admission Test (PhilSAT) is conceptualized to become the standard aptitude test that will measure the academic skills and capacity to be in law school. By virtue of the Legal Education Board (LEB) Memorandum Order No. 7, series of 2016 the Board declared PhilSAT as a prerequisite in law school admission either for the Bachelor of Laws or Juris Doctor degree. This Order is in pursuant to the power of the LEB on prescribing the minimum standards for admission in law schools under Section 7(e) of the Legal Education Reform Act of 1993 (RA 7662). The Center for Educational Measurement, Inc. (CEM) will be responsible in the implementation and operation of the PhilSAT throughout the Philippines.

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View the Legal Education Board (LEB) Memorandum Order No. 7, series of 2016 here.

Considering the predicaments of future law students who are sending email inquiries from me through my blog, I try to come up with some comprehensive information regarding the PhilSAT to manage your expectations and to make adequate preparation of passing the uniform admission test to law schools in the Philippines.

What to expect from the PhilSAT

The PhilSAT will be a one-day examination/aptitude multiple choice type of test. The passing rate is 55% and passers will be given a Certificate of Eligibility valid for 2 years only. There is no limit on how many times you can re-take the admission test once you flunk the exam (I hope not!).

Comprehension, critical thinking and communication abilities are important from lawyers. That is why the PhilSAT dwells on different subtests involving language proficiency, subtests on communications, verbal and quantitative reasoning, and critical thinking skills.

Test for proficiency on language and communications

This will test your grammar and usage errors, including the determination of the use of appropriate words and phrases in a sentence. You need to practice various areas of language proficiency, namely how to improve writing sentences, sentence completion and identifying error in a sentence.

Test your language and communication skills by taking this Written Test of English Language Proficiency and Legal terminology as a good exercise.

Test for Verbal reasoning

This test consists of reading passages with subsequent questions about each passage. It will test your ability to understand what you read and draw out a conclusion according to its content.

I found this Verbal Reasoning Practice Test that you may want to try out.

Test for Quantitative Reasoning

This test will measure your mathematical skills using interpretation and analysis based on numerical information in order to draw a conclusion. Subtests include data interpretation, data sufficiency and pattern recognition.

You may find these tips on quantitative reasoning helpful.

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Test for Critical thinking

The test will measure your analytical skills and reasoning based on the written propositions from which you will draw out a conclusion. This basically provides two types of questions namely analytical reasoning and logical reasoning.

I found some helpful tips and good critical thinking sample tests that you may practice from here.

Who are exempted from taking the PhilSAT

The PhilSAT provides some exemptions from taking the admission test in law schools. To qualify you need to be an honor student who is granted with professional civil service eligibility and is enrolling in law school within 2 years from graduation. All these conditions must be met.

Who are qualified in taking the PhilSAT

To qualify for taking the PhilSAT you must be:

1. A graduate of a 4-year bachelor's degree or its equivalent.

2. Graduating student of a 4-year bachelor's degree or its equivalent at the end of the school year when the admission test is administered.

3. Graduate of a 4-year bachelor's degree from a foreign higher education institution certified by CHED.

Where to register for the PhilSAT admission test

The Legal Education Board has revolutionized the registration for the PhilSAT admission test through an online registration system. The test date will begin on April 16, 2017 with a testing fee of P1,000.00. You may register from March 2 until April 3, 2017.

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Visit the official PhilSAT online registration website here.

You may register online here.

Testing Centers

The LEB accredited the following testing centers for the PhilSAT:

1. Metro Manila

2. Baguio City

3. Legazpi City

4. Cebu City

5. Iloilo City

6. Davao City

7. Cagayan de Oro City

Side Note:

The PhilSAT should not deter you from pursuing your dream to become a lawyer. Take this as an inspiring food for thought from Abraham Lincoln.

Premature Marriage Now Decriminalized by Virtue of RA 10655

2016-11-16T05:53:00.000-08:00

By virtue of Republic Act 10655, which was signed into law on March 13, 2015, Article 351 of the Revised Penal Code has been repealed and in effect decriminalized premature marriage. Article 351 provides:

Art. 351. Premature marriages. — Any widow who shall marry within three hundred and one day from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos.

The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one day after the legal separation.

The repeal is without prejudice to the provisions of the Family Code on paternity and filiation.

The rationale for the repeal is that it is discriminatory among women as it curtails their right to marry under the above-stated circumstances. The salient purpose of the prohibition under Article 351 is to impose among women a mourning period which prohibition is not imposed among men.

LAST MINUTE TIPS FOR THE BAR EXAM FROM A FORMER BARRISTER

2016-10-12T10:16:00.006-07:00

Image credit: GMA Network

This blog post is a continuation of my previous post on Hurdling the Bar Exam – Overhaul Your Strategies to Pass The Bar. November is getting closer and I can relate well about the feeling of jitters, anxiousness and sleepless nights that barristers now experience. I, too have some shares of terrorizing thoughts and going ballistic thinking about how to shortlist the topics to read during the last few weeks before the most dreaded month for the bar exam comes. With my sincere desire to help barristers, most especially some classmates who are going to take the bar and are texting me for help, here are some helpful (I hope) tips I can share with you to help you get through during the BIG DAY.

Tip #1 - EXPECT THE UNEXPECTED

Even if you come prepared I must say that no one will ever be that prepared and ready for the unexpected bar questions on the BIG DAY. So the first tip that I can give you is to EXPECT THE UNEXPECTED and be ready how to manage your emotion and mental block that can possibly happen. The emotional rush will be overwhelming, believe me, especially when the first question is something that you are uncomfortable of answering (or unfortunately you do not know how to answer). The bar examiners have their way of making barristers “comfortable” or “uncomfortable” about the questions that they will throw at you to test your wits and ability to argue within the legal purview. The first questions will always be the “gulpi de gulat” part. The question will either be the very basic that you tend to neglect studying during your review since you consider them negligible (yeah, such as different national territory of the Philippines – territorial zone, contiguous zone, etc. and the examiner asks you to define each!) or a very difficult case law that requires you to exercise your own judgment and ruling based on the facts given and on jurisprudence. You need to be mentally composed and relaxed during the exam to give yourself some breather to think clearly. Once you panic, mental block will consume you and you will definitely be lost.

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Tip #2 – OVERCOMING MENTAL BLOCK

Mental block is definitely every barrister’s foe. A common reaction to this is mental and emotional panic. It is a mistake to answer the question immediately while you are at this “unfit” state. To confront your mental block, spend a few seconds to relax yourself, regain composure and re-affirm to yourself that you have prepared enough for the bar to regain your confidence in answering the question. Don’t be too desperate in answering the question outright. You can skip the question and mark the questionnaire so that you can go back for it later. Do not forget to allocate a page for that question on the test notebook. By going to the next question that you are able to answer you can regain back your confidence that you are capable of defending your ground in the battlefield.

Another trick that I have learned from the research study conducted by the Science of Neuro-Linguistic Programming is to look up instead of staring at your desk during a mental block. Based on their brain research the position of the eyes actually influences which part of the brain we are trying to access. Looking up allows us to access information from our memories. Try it! There’s no harm done to do this when you are already in a desperate situation as a mental block during the bar exam.

Another thing that you can try is using Mind Mapping. Sure you cannot directly hit the bull’s eye to the answer but with mind mapping you start to trigger your memory to bring out everything you know that is related about the topic/question you have trouble of answering. The power of association will come into play and once triggered you can certainly pick up something useful that can help you answer the difficult question and play around such information in order to give the closest answer that you can possibly give the examiner. Lastly, even if you have a mental block never leave the question blank. Just give it your best shot. Getting 1 point from your answer is better than getting a zero. Remember 1 point and even .01 from your rating can influence your passing or not passing the bar so every point counts! So give it a good fight! Your future career depends on it!

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Tip #3 – DO NOT RELY HEAVILY ON TIPS

There is so much commotion about getting tips from other schools and review centers. While tips are helpful in some ways it can also be distracting in another. Tips can be helpful but common sense will always tell you that even granting other schools or review centers may have sources of getting tips you will still know the answer to the bar questions if you come prepared. Honestly, I was able to get hold of some of these so-called “tips” on the first day but mind you the tips are useless since not a single topic from it came out from the bar. After a quick scan of the last minute tip shared by a friend I lost interest from it since I already know what was written there. What I am saying is tips or no tips you already have the body of knowledge in your brain that will help you get through the bar questions. Rely on that heavily and not on some tips.

On the other hand, there are tips that are actually reliable. Although they are not the actual answer it helps you focus on important topics that might actually come out in the bar and gives you time to research or ask others about that topic before the exam begins. But again, tips or no tips you can still answer if you prepared well during your review. That’s my stand and point of view about tips and I hope that you will make it yours, too for the sake of passing the bar. Just play safe while in the battlefield and wear your own armor and weapons.

Bar Operations 2010 Then at La Salle

Tip #4 – BRING YOUR OWN SURVIVAL KIT

If there is something good about bar operations, it is the convenience they provide to the barristers. They provide a kit that contains everything you need from bottles of water, snacks, candies, lunch, fruits and other food stuffs and yeah medicine (this is not overdoing it for this became helpful when a classmate needs to go several times in the comfort room before the exam starts because of an upset stomach, most likely caused by anxiousness, and the medicine I prepared for myself helped calm down his stomach from going ballistic). I appreciate the efforts of my school’s bar operation organized by the school council for which I was an officer throughout my four years in law school but as I emphasized before I prefer taking with me my own armor and weapons and I selectively chose the medicines I will likely need during an “emergency.” And yes I did plan for and prepared my own “kit” since I expect that outside the UST will be chaotic and crowded and there is a chance that I will miss my school’s bar operation group and I can’t grab the kits that they will provide.

The lunch break is only good for 1 hour and taking into account the time it takes to walk and find a place to eat, in addition to the long line it takes to order your food plus the agony of walking under the heat of the sun or the rain that can be very stressful, it is smarter to stay within the UST campus to eat your lunch. I prefer eating light lunch and I have with me dark chocolates that keep my stomach feeling full throughout the day because they contain high fiber. Dark chocolates also enhance the blood flow to the brain and the heart which enhance cognitive function. The last thing I want to worry about is food and lack of energy so I make sure I get a dose of caffeine before going to the examination center, munch on some dark chocolates to make me feel fuller during the exam, chew some Mentos to give me some refreshing and cool feeling while answering on my test booklet and two bottles of water to keep me hydrated just enough but will not let me go to the comfort room during the examination. That’s all for my survival kit.

CPC Central Bar Operations at UST

Tip #5 – LEAVE EXCESS BAGGAGE BEHIND

You probably wonder why I included this here. Well, personally I was going through hell and fire during my review period and it takes a lot of commitment, courage and determination to focus. I refused that my personal circumstances will tip over my emotional and mental balance so I decided I need to unload myself from whatever baggage I was carrying at that time. Each one of us will always have our own personal circumstances, such as problems involving family, relationships, money, work, etc. that will be a barrier in focusing on your review and the bar. I have given up some things and made some major decisions that helped me unload the excess baggage I have been carrying for many years and that helped me attract positive vibes. If you have those baggage to carry with you during the bar month try your best to throw it away or at least shut them out of your system temporarily. It may be easier said than done but I do know how devastating it can be to have this baggage around during the review and bar months. They are a major distraction and destruction and you have to make a call in keeping them from affecting the outcome of your bar exam.

Tip #6 – NEVER DISCUSS THE ANSWERS OF THE BAR QUESTIONS

For your own peace of mind’s sake never attempt to discuss the answer of the bar questions with someone. Since you will have to endure the 4 Sundays of November, it is best to keep mum about the bar questions/answers and move on studying for the next subject that you will take. I know some people who tried to search for the answers of the past bar questions and spent the whole week worrying and feeling bad about giving the wrong answer that they lost focus on reviewing for the next Sunday’s exam. It can distract you from focusing on what matters the most at the moment. It can even make you lose confidence in taking the bar for the upcoming Sundays and you will eventually lose focus because of some nagging thoughts in your mind. Don’t let this practice kill your chance in giving your best for the succeeding Sundays.

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Tip #7 – TAKE MEMORY ENHANCER

Barristers are already subject to mental fatigue during the review months. Aside from the lengthy and exhaustive coverage of the bar exam, the type of the exam in the bar is more challenging than any other professional examination in the Philippines. With an essay type of examination you need to be mentally alert and you need to have a good analytical skill and comprehension. This in itself can become burdensome to your brain to process everything. Taking a memory enhancer can help you boost your cognitive performance. However, take precaution when taking anything. Make sure that you have a clearance from your doctor if you have some medical condition. Taking them will not guarantee you on passing the bar but can help enhance your cognitive function to help you process the information you learned during your review and help retain them in your memory. If you have some problems about memory retention and recall you may find this helpful. Memory enhancers can keep your mind sharp and allows you to focus and process information quickly. It also enhances your analytical and comprehension skills which are essential during the bar exam.

Tip #8 – PRAY SINCERELY AND REASONABLY

Prayer is a very powerful tool that can help you get through all sorts of challenges of the bar exam. But pray reasonably. By this I mean pray sincerely coming from your heart. This will do and you shall receive the divine guidance that you need. Saying a litany of prayers before the bar will not be of much help if you did not actually prepared well. The answers will not magically come to your mind during the bar exam. The divine guidance will happen when you most need it such as when you start panicking and saying a prayer will help calm you down or you will never feel anxious at all during the bar exam or when you come across a question and you are able to answer it very smoothly, or you come across a question which you are able to read before in your review. These are some of the “wonders” that prayers can do. But you need to help yourself, too. It is unreasonable to ask passing the bar when you have not spent much effort to make it happen.

Tip #9 – GIVE YOURSELF A GOOD FIGHT, YOU OWE IT TO YOURSELF

I call the bar exam the battleground because it will place you to a situation where you will struggle to fight for a spot to pass. Based on statistics, out of thousands of bar examinees only just a few hundred in some cases and not over two thousand for most cases only pass every year. The bar is no doubt the HARDEST professional examination in the Philippines and one of the hardest in the world. You need to realize this the moment you step your foot in law school in your first year. It takes years before you can build your database of knowledge about the law and the grand finale to test what you have learned is the bar exam. Knowing your struggles during your school days, the things you gave up and sacrificed, and the sleepless nights for many years to get this far, you should realize that you deserve to be on the 20% more or less who will pass the bar and not on the 80% casualties every year. Claim your spot to take your Lawyer's Oath soon!

BAR PASSERS TAKING THEIR LAWYERS OATH BEFORE THE SUPREME COURT JUSTICES
Image credit: GMA Network

Tip #10 – REMIND YOURSELF OF THE GOOD THINGS TO COME

Inspire yourself during the bar exam by thinking about the good things that are yet to come. Do you miss going out with friends and to socialize? Is your current job does not give you self fulfillment and satisfaction? Are you looking forward to getting long hours of sleep? After the bar you can indulge in socializing or sleeping for long hours and it will give you the leeway to do whatever you want to do. I am sure there are many good stuffs that you look forward to of doing after the bar exam. You can also look forward to practicing the law profession once you pass and get the Atty title before your name. After what you have sacrificed during the review months you are probably excited to be liberated from your review routines and become rewarded for your hard work by passing the bar exam. With these inspirations in mind you can condition yourself to do your best during the big day. The deliberate conditioning of the mind through positive thoughts can go a long way of driving you towards achieving your goals.

Hats up for all the barristers this year for I truly understand your sacrifices and struggles to get this far on your journey. Always look forward with positive thoughts and highly driven motivation to get through. It is not easy to be on the battleground but with the right armor and weapons you take with you the reward of winning is very fulfilling. Good luck and I’ll be offering special prayers to all of you.

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State of Lawlessness is Not Martial Law

2016-09-03T18:51:00.002-07:00

State of lawlessness is different from a martial law. This is my answer when someone at the firm asked me if the country will be placed under martial law after President Duterte declared a state of lawlessness in Davao that marred the country last September 2, 2016. The fear that the country will be placed under martial law is understandable considering the political history that left many Filipinos scarred until this time. In order to shed light into this issue, it is important to understand the difference between the two within the legal purview. A state of lawlessness pertains to the condition where there is no regard for the law or situations where there is unbridled conduct or behavior that equates to unruly condition or violence. Its implication is under the state of lawlessness the President may call more Armed Forces to provide more stringent security to places where there is lawlessness.

This power of the President emanates from the Constitutional provision embodied under Article VII, Section 18 where “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.” This, however, cannot be construed as equivalent to the declaration of a Martial Law. It is worth noting that only under the state of invasion and rebellion that the President of the Philippines may lawfully declare the country under Martial Law.

Under the state of lawlessness, the armed forces or the military will be allowed to exercise punitive action to prevent violence or acts of terrorism. This power of the President to declare a state of lawlessness is justified to reinforce the security of the country and to protect its citizens against lawlessness and violence. The military forces are still under the mandate to observe due process and uphold human rights along the process of executing their duties to protect the country.

In contrast, when the President declares a Martial Law when the public safety requires it, the armed forces or military will be authorized to make arrests without the need of court intervention. This is because the effect of Martial Law results in the suspension of the privilege of habeas corpus (note: it is merely suspended temporarily not exceeding sixty days, unless it is revoked or extended by the Congress voting jointly by a vote of at least the majority of its members).

The declaration of the Martial Law is without prejudice to the right of the citizens to seek redress from the Supreme Court to review the sufficiency of the factual basis of the Martial Law and the suspension of the Writ of Habeas Corpus. Moreover, the Constitution provides that the suspension of the Writ of Habeas Corpus will only be applied against persons charged with invasion or rebellion. The declaration of Martial Law will have the effect of calling the military to overtake civilian authority which is not the case in the declaration of a state of lawlessness in Davao City.

The mere effect of the declaration of a state of lawlessness is there will be more military and armed forces called upon to enforce the law, conduct check points and other security measures deemed necessary to ensure public safety. Civil rights will not be impaired and the security forces deployed will still be bound by the Constitutional provisions of due process and respect of human rights and will be still liable in case of any infractions of the law in the conduct of their duties.

Revised Rules of Procedure For Small Claims Cases

2016-07-12T06:23:00.000-07:00

By Virtue of A.M. No. 08-8-7-SC THE 2016 REVISED RULESOF PROCEDURE FORSMALL CLAIMS CASES, it is important to know that the jurisdictional amount has been raised from P100,000.00 to P200,000.00 effective February 1, 2016.

Shipmanagement Inc., et al. v Alexander Moradas GR NO. 178564, January 15, 2014

2016-06-15T07:21:00.000-07:00

Injuries due to the willful act of the employee is not compensable

FACTS:

The respondent was employed as a wiper for the vessel M/V Commander of the Shipmanagement Inc. The respondent claims that chemicals were splashed all over his body during garbage disposal in the vessel's incinerator room due to an explosion. He was repatriated and admitted to St. Luke's Medical Center. He was diagnosed with thermal burns. He now claims for the payment of his full disability benefit under Section 20 (B) in relation to Section 30 and 30-A of the POEA-SEC contending that his burns render him permanently disabled to work as a seaman. On the other hand, the petitioner disputed the claim of the respondent that he is entitled to the disability benefit. It contends that the burns and injury of the respondent are self inflicted by pouring himself with a paint thinner and set himself on fire. This was after he was dismissed after being caught stealing the supplies from the vessel. Report of the ship captain as well as affidavits of the crew members were submitted.

The Labor Arbiter and NLRC ruled in favor of the respondent, but the CA reversed the judgment, hence this petition for review on certiorari to the Supreme Court.

ISSUE:

Whether or not the respondent is entitled to the disability benefit.

RULING:

No. He is not entitled.

The court held to be entitled for the disability benefit it is not necessary to show that the injury was work-related. It must only be proven to have been contracted during the term of the contract. This rule is not absolute, however, and among the grounds for the exemption from liability by the employer is when the injury or cause of the disability is due to the willful and deliberate act of the seaman. The court found some grounds to conclude that the respondent's injury is indeed deliberate and self inflicted because there is no showing of evidence on record that the burning was due to an accident and that the petitioner's theory that the respondent's burn were self inflicted is correct as supported by evidence that shows the respondent's motive.

Alpha Ship Management Corporation, et al. v Eleosis Calo GR No. 192034, January 13, 2014

2016-06-13T20:47:00.000-07:00

Failure to act by the company physician within 120-240 days under the Amended Rules on Employees Compensation there is a conclusive presumption that the seafarer's disability is permanent and total, thereby entitling him for disability benefit

Facts

Respondent Calo works with the petitioner under 7 employment contracts. He suffered from back pain and urinated solid particles while working on board as chief cook of Chuo-Kaiun Company Ltd. He was diagnosed with UTI and renal colic. When his condition did not improve, he went to another doctor who diagnosed him with kidney problems and UTI but was cleared for work although only for light duties. On Sept. 19, 2004 he was declared unfit to work and was ordered to return to the Phils. He was repatriated on October 12, 2004 and visited the company physician Dr. Nicomedes Cruz upon arrival who recommended he is fit to work. When he filed for disability benefits the claim was denied. The Labor Arbiter ruled in favor of the respondent but this was reversed by the NLRC. On appeal, the CA reinstated the Labor Arbiter's ruling hence this petition for review on certiorari.

Issue

Whether or not the respondent is entitled to disability benefits despite being declared as fit to work.

Held

He is entitled to disability benefit.

Article 192 (c)(1) provides that disabilities shall be deemed total and permanent xxx c) temporary total disability lasting continuously for more than 120 days. Xxx The 120-day period may be extended up to 240 days under Rule X, section 2 of the Amended Rules onEmployees Compensation and pursuant to the pronouncement that a temporary total disability becomes permanent when so declared by the company-designated physician within the period allowed, or upon the expiration of the 240 days medical treatment period in case of absence of such declaration of fitness or permanent disability. If after the lapse of these periods, a seafarer remains incapacitated in performing his duties and the company-designated physician has not yet declared him to be fit to work or permanently disabled, there is a conclusive presumption that he is totally and permanently disabled.

It appears that the respondent was repatriated on October 12, 2004 and his treatment continuous until October 14, 2005, a period of more than a year and the company-designated physician failed to make an assessment on the respondent's medical condition. The period of 120-240 having lapsed, the presumption that the respondent's condition was permanent and total already attaches. He is therefore entitled to claim for disability benefit.

Benigno Vigilla, et al. v Philippine College of Criminology, Inc. GR No. 200094, June 10, 2013

2016-06-10T00:21:00.000-07:00

Law Principle:

Anything favorable to the labor-only contractor redounds to the benefit of the employer under the principle of solidary liability

Facts:

The petitioners work for the Philippine College of Criminology Inc. (PCCr) as janitors, janitress and supervisor in its maintenance department. The petitioners were made to understand by the respondent PCCr that they are under the Metropolitan Building Services, Inc. (MBMSI) which is a corporation engaged in providing janitorial services. PCCr terminated the services of MBMSI on 2009 which resulted in the dismissal of the petitioners. An illegal dismissal complaint was then filed against PCCr by the petitioners contending that it is their real employer and not MBMSI. Subsequently, the PCCr submitted to the Labor Arbiter waivers, releases and quitclaims that were executed by the petitioners in favor to MBMSI.

The Labor Arbiter and NLRC ruled in favor of the petitioner, however upon filing the petition for review on certiorari before the Court of Appeals, the CA ruled that the quitclaims, releases and waivers executed by the petitioners in favor to MBMSI redounds to the benefit of PCCr by virtue of solidary liability under Article 1217 of the NewCivil Code. The petitioners contend that under Article 106 of the Labor Code a labor-only contractor's liability is not solidary as it is the employer who should be directly responsible to the supplied worker.

Issue

Whether or not the quitclaims, releases and waivers executed by the petitioners in favor to MBMSI redounds to the benefit of PCCr?

Held

Yes.

The Supreme Court held that the basis of the solidary liability of the principal with those engaged in labor-only contracting is the last paragraph of Article 106 of the Labor Code that provides, "In such cases of labor-only contracting, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him."

It also pointed out D.O. No. 18-A, s. 2011 section 27 providing for the effects of labor-only contracting "where upon the finding by competent authority of labor-only contracting shall render the principal jointly and severally liable with the contractor to the latter's employees, in the same manner and extent that the principal is liable to employees directly hired by him/her, as provided in Article 106 of the Labor Code."

Hence, the PCCr's solidary liability was already expunged by virtue of the releases, waivers and quitclaims executed by the petitioners in favor of MBMSI by virtue of Article 1217 of the Civil Code providing that "payment made by one of the solidary debtors extinguishes the obligation."

BAR 2016 COVERAGE

2016-06-08T17:39:00.000-07:00

Bar Taker Peeps! Here are the coverage for the 2016 Bar Examination.

Source: Bar Exam Online Coach & Mentor

Political Law - http://bit.ly/2016PolSyll
Labor Law - http://bit.ly/2016LabSyll
Civil Law - http://bit.ly/2016CivSyll
Taxation - http://bit.ly/2016TaxSyll
Mercantile Law - http://bit.ly/2016MerSyll
Criminal Law - http://bit.ly/2016CriSyll
Remedial Law - http://bit.ly/2016RemSyll
Legal and Judicial Ethics - http://bit.ly/2016EthSyll

Joyce Ardiente v. Spouses Javier and Ma. Theresa Pastorfide, Cagayan De Oro Water District and Gaspar Gonzales, Jr. GR. NO. 161921, July 17, 2013

2016-06-08T11:49:00.000-07:00

"Principle of Abuse of Rights" - Article 19 of the Civil Code

FACTS:

Ma. Theresa Pastorfide entered a MOA with Joyce Ardiente where the latter sold, conveyed, and transferred all their rights and interests in the Emily Homes Housing unit to the former. It has been agreed by the parties that the water bill will remain in the account of Ardiente. On March 12, 1999, Ma. Theresa's water supply was disconnected without notice. She complained to the Cagayan De Oro Water District (COWD) and she found out that the account has become delinquent. She paid the three months due and wrote a letter through her counsel to the COWD to explain why her water supply was cut without notice.

The general manager of the COWD, Gaspar Gonzalez, replied that it was Joyce Ardiente who requested the disconnection of the water supply. A complaint for damages was filed against Ardiente, COWD and Gonzalez by Ma. Theresa. The RTC ruled in favor of Ma. Theresa on the ground that the defendants committed abuse of their rights. The ruling was upheld by the CA on appeal with modification on the award of the amount for damages.Hence this petition before the SC.

ISSUE:

Are the defendants liable for damages?

RULING:

Yes. The court ruled that the principle of abuse of rights under Section 19 of the Civil Code was violated. It provides that "every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith."

A right, although it is legal for being recognized by law as such, may nevertheless become the source of illegality (Globe Mackay and Radio Corporation v CA), when it is exercised in a manner that does not conform with the norms enshrined in Article 19 and the same causes damage to another. The person exercising an abuse of right is thus liable for damages caused to another. The herein petitioner is liable for damages by ordering the cutting of the water supply of the respondent without giving notice about such intention. The COWD and Gonzalez are likewise liable for damages by disconnecting the water supply without prior notice and for their subsequent neglect of reconnecting the water supply even when the respondent already paid the delinquent account.

Swedish Match Philippines, Inc. v. The Treasurer of City of Manila G.R. No. 181277, July 3, 2013

2016-06-08T09:13:00.000-07:00

"What constitutes double taxation"

FACTS:

This is a case filed by the petitioner for Refund of Taxes. In its letter to the City of Manila Treasurer, the petitioner claimed double taxation when it paid business taxes under Sections 14 and 21 of Ordinance No. 7794 which is the Manila Revenue Code. The respondent contends that both sections refer to two distinct objects of tax, hence they are not the same in character and kind that will result in double taxation. The RTC, CTA division and CTA en banc denied the petition for a tax refund filed by the petitioner.

ISSUE:

Whether or not both sections of the Manila Revenue Code constitute double taxation

RULING:

Yes, there is double taxation.

The ELEMENTS OF DOUBLE TAXATION ARE:

The taxes are imposed on
1. The same subject matter
2. For the same purpose
3. By the same taxing authority
4. Within the same taxing jurisdiction
5. For the same taxing period
6. The same kind of character

While the petitioner is liable for the payment of business taxes to the City of Manila, the fact that it already paid under section 14 of the Manila Revenue Code, it is already precluded from paying the tax imposed under section 21 of the same code.

As has been noted by the court, both sections are imposed for the following:
1. for the same subject matter, which is for doing business in the City of Manila
2. for the same purpose, which his to contribute to the city revenues
3. By the same taxing authority, which is the City of Manila
4. Within the same taxing jurisdiction, which is the territory of City of Manila
5. For the same taxing period, which is the same calendar year when both taxes were paid
6. For the same kind of character, which is a local business tax

Considering these nature of taxes paid by the petitioner under both sections of the Code, the court held that the petitioner is entitled to a tax refund for the tax it paid under Section 21.

Hurdling The Bar Exam – Overhaul Your Strategies to Pass The Bar

2016-06-02T09:32:00.001-07:00

The Bar examination is no doubt the hardest licensure exam in the Philippines. There is no shortcut in taking the bar and to earn the prestigious title of an attorney or a lawyer. It feels like getting the ATTY. before your name is like finding a needle on a haystack with different kinds of adversaries you need to overcome along the way. One has to be prepared emotionally, intellectually, physically, financially and yes spiritually, where you need to recite many novenas and personal prayers especially when you find yourself mentally drained and too wasted due to lack of sleep, stress and tension combined. I truly understand how a barrister feels during the bar review. Been through some of them and I manage to find some solutions to get over it. I have to share them for the sake of helping others who might go through the same ordeal, although I must say every person is unique and each has his own coping mechanism.

Problem: When time is a foe

With the loads of the review materials that one has to study every day, one can literally go crazy if you are unable to learn how to balance everything. You will feel 24 hours are not enough to finish your coverage and there are times you spend the day worrying too much for not having enough time to finish your target coverage for the day and will realize the day ended without you accomplishing anything. That is so frustrating since every minute counts during the review period. You need to study eight subjects (Political Law, Labor Law, Civil Law, Taxation Law, Commercial Law, Criminal Law, Remedial Law and Legal and Judicial Ethics). Take note that each subject has its own sub-subjects (too many to enumerate) plus you need to study outside the book for jurisprudence (decided cases of the Supreme Court) and other special laws, which are all included in the coverage of the bar exam. Seriously, six months of review for the bar exam after you graduate from law school is certainly not enough and you have no luxury of time to waste.

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Solutions:

1. Decide whether to enroll or not to enroll in a review center early

Understand that after you graduate you need to begin your review the soonest time possible. If you plan of enrolling to a review center, it is best to make inquiries from different review centers as early as February. It is effective to ask from the other bar passers which review center they can recommend and ask for the review center’s styles of teaching. Compare the schedules available for the review. Most convenient is checking the websites of the review centers (almost all have their own websites). Consider the place where you will stay and the travel time it takes in coming back and forth to the review center.

You need to consider your budget, too. Just a piece of advice, you need not go to the most expensive review center to get assurance that you will pass. Going to a review center is necessary, especially when you are a first taker, except of course if you are too confident that you can overcome the bar with flying colors on your own by self study. This is always a matter of preference and knowing your abilities and weaknesses. But seriously review centers are helpful in providing you the guidance on identifying the bar areas to focus on during the review for each subject. They are also the convenient source in obtaining the most recent jurisprudence that are significant for the bar exam.

Online review is also convenient. You need not rush to attend the schedule provided by the review center and you cut down the travel time in going there. You get to view video lectures at your own convenient time and it’s like a one-one-one lecture as you watch the lecturer’s recorded video that you can repeat on watching over again (you can rewind, forward and pause as you take notes). You can also select video lectures by topics, too and there is usually more than one lecturer available for each subject so you get to choose which of them explains the topic better for your level of comprehension.

2. Organize your own schedule

Organizing your own schedule can be a bit tricky especially when you are attending a review center. To avoid conflict, it is best to sync your own review schedule according to the schedule provided by your review center. There are different ways to make your own schedule. I find Atty. Ma. Tanya Karina Lat’s Bar Blues book very helpful in organizing my review schedule per subject. It includes the different schedules used by past Bar topnotchers and you get to choose which style you find best for your circumstances. I opted to study per subject and divided the total number of days before the bar month for each subject while giving more days to review for the subjects I find the most difficult.

3. Invest in quality than quantity

Because you are likely to be time constraint during the review period you must invest in quality reading. I conditioned my mind that during my readings I will no longer have the luxury of time to go back and read the material again. So I really focus each time I read to ensure that everything is registered in my brain memory. If you feel sleepy, don’t force it. Take a nap and once your brain is refreshed, everything flows smoothly again.

4. Choose review materials with scrutiny

Do not hoard review materials. It is best to scan through the pages of the review materials available for you and compare which presentation is easy to understand. Remember, the law will always be the same regardless of the review materials that you will use. Hence, you should scrutinize the presentation of the material and determine which is easier to comprehend. It is best to select one review material only and master it. There are three areas that I consider a must from a review material. One is a general reviewer (I highly recommend San Beda’s Red Book which is comprehensive, accurate and concise), latest jurisprudence (the best ones are provided by the review center as you will not have the luxury of time reading all of the Supreme Court’s decided cases), and law doctrines and principles (I find Lex Pareto the best). If you cover these areas you will certainly have enough to answer for the bar questions.

On the side note: Make sure to start studying on your first year in law school. You will not have enough time to read your textbooks again during the review period. Your pacing is faster while studying the reviewers if you have enough foundation during your school years.

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Problem: Mental blackout, emotional turfs and stress

Mental blackout is too common, especially when you are too stressed out and mentally drained. At some point during your review you should expect to experience this anytime. It is very common to find yourself reading the book and after going over through several pages you feel frustrated that none have registered to your memory. The bar review can also be emotionally challenging. It is common to feel a mixed emotion at the end of the day, especially when you feel tired, frustrated for not understanding a difficult topic, missing your loved ones, not getting enough sleep, missed a meal, losing self confidence, worrying too much, etc.. This stage of the review is made worse when you review alone or live in a place where you have no one else to talk to. Tension can also build up and misunderstanding among the reviewees happens. It is either you are involved in the fight or you find yourself trying to arbitrate in between.

Solutions:

1. Do not go overboard - Know your limits

Mental blackout happens when your brain is too tired and it is a sign of mental distress. This is actually a good thing, just like stress, as it warns us that we are probably taking our body beyond its limits. Once you experience mental stress it is best to give your brain a rest. Sleep is the best cure for mental stress. It allows the brain cells to recuperate. Break your monotonous routine of reading for long hours. Take a short break, eat something to re-energize, stretch, go shopping, watch a movie or visit a friend. Be careful not to get too carried away when doing this. You need to get back to your review as soon as possible.

2. Make yourself physically and mentally fit

My favorite cures for mental stress are sleep (I take at least an hour nap during the day) and watching my favorite series that I download on my laptop (which usually take only 45 minutes than watching a movie that takes at least 2 hours to finish). I also exercise at least an hour everyday by attending a Zumba class (this is the beauty of attending an online review – I am in control of my schedule) and as the bar month nears I do the dancing inside my room in a dorm only (since I have to attend special review classes as the bar exam nears – mainly to update myself of the latest jurisprudence). My fitness goal is to sweat out and keep my circulation going. This brings more oxygen to my brain that enhances my mental alertness and physical fitness after long hours of sitting and hundreds of pages to read every day. Make yourself resourceful. You can always find an alternative activity that will make you physically active in between your review.

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3. Avoid conflicts and maintain good social relationship

Relationship strains can be a source of major stress during your review. Conflicts with friends, family members and your partner should be avoided. You will be surprised how this can actually cause you emotional and mental burden during your review. You will likely be distracted, confused and out of focus. It is best to isolate yourself from people with personal issues to avoid getting tangled with their problems. You already have enough of your own to hurdle for the bar exam. Dismiss the distraction and enclose yourself to your own world where your focus is how to pass the bar. However, you need friends for support so it is best to maintain a good social relationship with others, especially your fellow barristers. You can share notes together and uplift each other’s spirits, laugh out the stress and keep each other sane and strong.

Problem: Getting sick and getting behind your schedule

It is inevitable that at some point during the bar review you will get sick. A good advice is learning how to do everything in moderation to avoid overstressing yourself to the point of getting sick. It is important to strengthen your immune system because getting sick is a mortal sin among the barristers. Among the repercussions of getting sick is getting behind your review schedule and honestly there is nothing you can do about it while you are not in a healthy state – so focus on getting well!

Solutions:

1. Do not despair and panic

Once you are sick, then you are sick. You cannot force yourself to study. Your main focus is to get well soon enough. Once you are well, try to compensate for the lost time by adjusting your schedule to cope. It may sometimes take sacrificing the nap that you often do or adding another couple of hours a day for your study hours or skipping your movie time. Do not panic and do your study routines as scheduled. Do not spend precious time for worrying.

2. Keep yourself healthy

Take vitamin C and supplements to make you strong against stress and sickness. Lack of sleep and stress are your greatest foes that can make you fragile and susceptible to sickness (cough and flu are the most common sickness among barristers). Always hydrate yourself and eat healthy foods. A healthy diet and exercise are essential during this most challenging time of your life. As much as possible stay away from sick people and observe proper hygiene to ensure that your body is in optimized condition in overcoming stress.

Problem: How to answer the bar exam

Every year the number of bar takers is increasing. The implication of this is that the examiners will only have shorter time to read and appreciate your answer. What you need to do is make your answer COMPLETE, CONCISE, AND WITH LEGAL BASIS. It is indeed very challenging when you need to be focus on your handwriting, make a mental margin on your test booklet, analyze the question and formulate your answer and writing it down without erasure all about the same time.

Solutions:

1. Eliminate the three paragraph rule

Our professors (and even some review center lecturers) may have taught us how to answer bar questions using the three paragraph rule, but with all due respect I find this no longer practical or viable in the present bar exams. Answering in a single paragraph consisting of 5 sentences at the maximum is probably more effective (which is the style of answering I did after realizing that answering in 3 paragraphs is disastrous). Based on the calculations of a respectable Dean – bar lecturer, with about 7,000 plus bar examinees, a bar examiner has only about 2 minutes to read per test booklet to finish on time within the 6 months period of checking. With about at least 20 essay questions with additional sub-questions on each number, the 2 minutes time frame will not give the examiner the luxury of time reading a litany of answers from the test booklet.

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2. Answering in one to two paragraph

Not all questions can be answered in a single paragraph only. Make sure to exercise good judgment when to answer in one paragraph or two since a single question usually has a main question and a follow-up question at the end. You need to address all questions to satisfy the examiner. Structure your answer in such as way that it is supported with a legal basis. This is a must and cannot be dispensed with. One paragraph with four to five sentences is enough. This is sufficient enough to give a concise and complete answer but the difficult part is learning how to do it.

This is not an expert advice but one that perfectly works well: Use the first sentence in answering the question (ex: X is not liable for murder). Use the second, third and fourth sentence to indicate the circumstances that make you dispute or agree with legal basis (ex: The act of X does not involve the commission of any of the aggravating circumstances as required by the Revise Penal Code.) The last paragraph should be the conclusion (ex: In the absence of aggravating circumstances, X is therefore only liable for the crime of homicide). While this looks simple as it seems, this kind of answering works well in criminal law where you only need to know the elements to know what crime is committed. I usually attack the question by citing the elements (an examiner cannot question that since it is provided in the law) and most of my answers in criminal law were only 3-4 sentences and I still pass. I answered in one paragraph in other subjects with two paragraphs max occasionally.

I humble myself that I may be wrong, but I feel strongly about this type of answering as more practical and doing the examiners the favor of giving an outright answer (that is concise and with legal basis). It does works and I passed the bar even if I departed from the traditional three paragraph rule.

3. Strategize in framing your answer

This part is actually tricky and I must admit one really needs to have a good command in English to get through. You need to learn writing in direct and concise manner. Eliminate fillers, such as words that are not really necessary to include in the sentence to keep it short. To make your answer complete and essential use keywords that the examiner will likely look for when checking your answer. I usually write these keywords from the questionnaire and focus my answer towards them. It takes a lot of practice and getting used to this style of writing that you learn the trick of making your answer short. Grammar and good command in English is a must for lawyers so if you think this an area of weakness, you need to spend the extra effort to improve. A good trick is to answer the question by considering the elements of the crime/offense. You will never go wrong with this and you need not think out of the box.

Prayer helps you overcome all obstacles

Above all the strategies given above, prayer is the best weapon that can help you hurdle the bar exam. Prayer can make miracles happen. It can move mountains and most of all it can bring divine intervention so you’ll have everything you need to pass the bar. You need to couple it with diligence in studying, of course. As the adage goes “nasa Diyos and awa, nasa tao ang gawa.” Make God your partner in every difficulty and struggle you experience. He will help lighten the burden of taking the bar exam and will provide you what you need to make it through. Hope. Trust. Have Faith. Do your part and leave the rest to God.

DOCTRINE OF OPERATIVE FACT

2015-02-03T06:12:00.000-08:00

DOCTRINE OF OPERATIVE FACT

This is the exception to the general rule that a law declared by the Supreme Court as unconstitutional is void. What the doctrine implies is that a law remains to be operative and constitutional until the same has been declared void. Thus, the law that has been declared as unconstitutional remains to be operative prior to the declaration of the Supreme Court on its unconstitutionality.

The doctrine does not stem from any statute but is based on fair play and equity. It operates when the declaration of a law's unconstitutionality will result in undue burden to those who rely on the law that is presumed to be legal and constitutional until declared otherwise.

It must be noted, however, that the doctrine of operative fact does not make an unconstitutional law valid and constitutional. It merely erases the effects of its unconstitutionality before it is judicially declared as void.

Abbot Laboratories Philippines, et al. vs Perlie Alcaraz GR No. 192571, July 23, 2013

2015-01-03T02:56:00.001-08:00

Case Doctrine:

Compliance with the certification against forum shopping is separate from and independent of the avoidance of the act of forum shopping itself.

Facts:

The respondent Alcaraz was the Regulatory Affairs and Information Manager of Aventis Pasteur Philippines who showed interest in applying as a Medical and Regulatory Affairs Manager, a position that was published by the petitioner Abbot Laboratories in the newspaper. When the petitioner formally offered the position to the respondent, the latter accepted the position. It was on May 23, 2005 that Walsh, Almazar and Bernardo formally handed to the respondent a letter terminating her employment with the detailed explanation for her termination. The respondent then filed a complaint for illegal dismissal with damages against the petitioner and its officers. The Labor Arbiter upheld the termination of probationary employment of the respondent holding that the termination was justified with no evidence showing that the officers of the Abbot Lab acted in bad faith when terminating her services.

The NLRC annulled and set aside the ruling of the Labor Arbiter which prompted the petitioners to file before the Court of Appeals a petition for certiorari with prayer for issuance of a temporary restraining order and writ of preliminary injunction. Meanwhile, the action of the petitioner on its motion for reconsideration of the CA’s resolution in the second CA petition was denied that became final on January 10, 2011 because the petitioner failed to file a timely appeal on the said decision. Alcaraz, in her comment, raised the issue on forum shopping when the petitioner filed its second petition to the CA pending the resolution of the motion for reconsideration that they filed earlier in the December 10, 2009 decision. Alcaraz further contends that the petitioners failed to comply with certification requirement under Section 5, Rule 7 of the rules of court when they failed to disclose in their petition filed on June 16, 2010 Memorandum of Appeal filed before the NLRC.

Issue:

Whether or not the petitioner violated the rule against forum shopping and have violated the certification requirement under Section 5, Rule 7 of the Rules of Court.

Ruling:

The court emphasized that the compliance with the certification against forum shopping is different and separate from the avoidance of the act of forum shopping itself. There is difference in the treatment between the two situations in terms of the imposable sanctions and the means of enforcing them. The failure to comply with the certification requirement against forum shopping is sufficient cause for the dismissal of the complaint without prejudice to the filing of the complaint or initiatory pleading upon motion and after hearing. The failure to avoid the act of forum shopping, on the other hand, is a sufficient ground for a summary dismissal and direct contempt.

In the first situation, forum shopping takes place when the party files multiple suits that involve the same parties with the same issue, either simultaneously or successively, in order to obtain a favorable judgment. It is present when there is the requisites of litis pendentia namely : (1) identity of parties is the same with the same interests in both actions, (2) identity of rights asserted and reliefs prayed for and founded on the same facts, (3) identity of the two preceding cases where a judgment rendered in the pending case will amount to res judicata in the other case. Taking into account these requisites, the court found no elements of a forum shopping. The first petition before the CA was instituted in order to question the NLRC ruling with respect to the illegal dismissal of Alcaraz. The second petition before the CA involves the issue on the propriety of the enforcement of the judgment award pending the resolution of the first CA petition and the finality of the decision in the labor dispute between the parties. The decision on the first CA petition does not amount to res judicata with respect to the second petition before the CA as the two petitions involve different subject matter and cause of action, hence there is no forum shopping.

In the second situation, section 5 of Rule 7 of the Rules of Court requires the plaintiff to disclose/declare under oath that the best of his knowledge no such other action or claim is pending before other courts. Records show that the issues raised in the petition before the CA and those raised in the June 16, 2010 Memorandum of Appeal filed before the NLRC cover different subject matter and causes of action, therefore there was no violation of the said provision of the rules of court.

Carlito C. Encinas v PO1 Alfredo Agustin, Jr and PO1 Joel Caubang GR No. 187317, April 11, 2013

2015-01-02T04:18:00.000-08:00

Case Doctrine:

There is forum shopping when litis pendencia or res judicata is present.

FACTS:

The petitioner Encinas was the Provincial Fire Marshall of Nueva Ecija. He was charged administratively with grave misconduct and conduct prejudicial to the best interest of the service in violation of the Administrative Code of 1987. He was dismissed from the service. The two respondents were holding the positions of Fire Officer I. He petitioner filed a petition for review on certiorari under rule 45 of the Rules of Court assailing the decision of the Court of Appeals affirming the decision of the Civil Service Commission to dismiss the petitioner from the service.

The case arose when the petitioner allegedly required the respondents to pay him P5,000 in order not to relieve them from their station at the Cabanatuan City and re-assign them to a far flung area. The respondents decided to pay in fear of the re-assignment, but they manage to come up with P2,000 only causing the petitioner to order for their re-assignment to Cuyapo and Talugtug.

As a result, the respondents decided to file a complaint for illegal transfer before the Bureau of Fire Protection and at the same time filed another complaint before the Civil Service Commission Regional Office in Pampanga and the Civil Service Commission in Cabanatuan. Based on the filed complaints, the petitioner alleges that the respondents are guilty of forum shopping by filing the two identical complaints. The petitioner claims that the charges of dishonesty, grave misconduct and conduct prejudicial to public interest that were filed before the Civil Service Commission and the BFP are in violation of the rules against forum shopping.

ISSUE:

Is there a violation on the rules against forum shopping?

RULING:

The court held the respondents are not guilty of forum shopping. The court enumerated what constitutes a violation of forum shopping which include the presence of the requisites of litis pendentia and res judicata. There is litis pendentia when: (1) identity of parties is the same with the same interests in both actions, (2) identity of rights asserted and reliefs prayed for and founded on the same facts, (3) identity of the two preceding cases where a judgment rendered in the pending case will amount to res judicata in the other case.

For res judicata to bar the institution of a subsequent action, the following requisites include (1) the former judgment is final, (2) the court rendering the said decision has jurisdiction over the parties and the subject matter, (3) judgement is based on the merits, (4) between the two actions, there must be identity of parties, subject matter and cause of action.

In applying the above requisites, the court held that the dismissal of the petitioner based on the BFP complaint does not constitute res judicata in relation to the CSC complaint. The dismissal by the BFP is not based on the merits, but based on the recommendation of the fact finding committee in determining whether a formal charge of an administrative offense may be filed. There is therefore no rights and liabilities of the parties that were determined in the said action with finality. The court thereby affirmed the dismissal of the petitioner and denied the petition.

Conflict of Laws Doctrines

2014-08-15T18:43:00.001-07:00

IMMOVABLE PROPERTY

• Lex situs (where the property is situated)

– character of immovable property as an isolated object (law of the place where the land is situated)

Immovable property as the factor not the parties

MOVABLE PROPERTY

• Lex domicilii (owner’s domicile)

• Lex situs (where the property is situated)

• Lex loci actus (place where the transaction was completed and the proper law of the forum)

Proper law of transfer (state which has the most real connection with the transfer)

Article 16 of the Civil Code

“Real property as well as personal property is subject to the law of the place where it is situated”

CAPACITY TO TRANSFER OR ACQUIRE

• Law of the place where the property is located

EXTRINSIC AND INTRINSIC VALIDITY

• The formalities of a contract to convey property are governed by the lex situs.

• Lex situs also applies to the essential validity of the transfer unless the lex intentionis is clearly established.

• The lex situs also governs the effects of the conveyance of properties.

EXCEPTIONS TO LEX SITUS RULE

• Where the transaction does not affect transfer of title to or ownership of the land. In this case the proper law of the transfer which is the lex intentionis or lex voluntatis is the governing law.

• In contracts where real property is offered by way of security for the performance of an obligation such as loan, the principal contract is the loan while the mortgage of the land is only an accessory. The mortgage of the land is governed by the rule of lex situs but the loan contract is governed by the rules on ordinary contracts.

• Testate and intestate succession and capacity to succeed are governed by the national law of the decedent. (Article 16, par. 2, Civil Code)

SITUS OF CERTAIN PROPERTIES

Personal property for tax purposes

- Mobilia sequuntur personam (rights over movables are governed by the law of the owner’s domicile)

Situs of Money

- Place were the money was endorsed under a contract

Situs of Debts

- Debt though intangible is subject to seizure like tangible

- Debt is located where the debtor is because it is where he can be sued and the debt collected

Situs of corporate share of stocks

- The country or state where the corporation which issues them is registered and organized

CHOICE OF LAW IN TORTS AND DAMAGES

TORT

- torque or to twist

- Act or omission producing an injury to another without any previous existing relation of which the act or omission may be said to be a natural outgrowth or incident

TORTFEASOR

- one, who contrary to law, by his act or omission wilfully or negligently causes damage to another and shall indemnify the latter for the same.

Law Governing Torts

Action is brought in one jurisdiction for a tort committed in another

- General Rule: lex loci delicti (law of the place of the wrong)

- the case which is the cause of the injury and the foundation of the action must be at least actionable by the law of the place in which the wrong is done

- Not only must a legally maintainable right be created by the lex loci delicti, but the conduct complained of must be actionable by the law of the forum as well, to maintain an action.

- Where an action is brought in one state based on facts occurring in another which do not constitute a common-law right of action, plaintiff must plead and prove that in such other state there is a statute permitting recovery, otherwise, not actionable.

Wrongful act or omission took place and the law of the place where the injury or harm was sustained:

General Rule: law of the tort within the contemplation of the rule that the law of the place of the tort or wrong governs liability and other substantive matters, is the place of the injury or harm.

Choice between the law of the place in which a fatal injury was inflicted and the law of the place in which the resulting death took place

General Rule: the place of the tort, within the contemplation of the rule that the situs of the tort governs matters of substance, is the place where the fatal injury was inflicted, and not the place where the resulting death occurred.

Cause of action depends upon a statute, there must be a statute at the forum similar to that of the place where the cause of action arose, or else jurisdiction will be refused.

Wrongful Death

- Lex loci delicti commissi (place where the acts causing death was committed)

Philippine courts cannot blindly apply conflict of laws rules enunciated in another country. It may apply the traditional rule of lex loci delicti, where the wrong done is in the Philippines or is doing business or domiciled in the country and assume jurisdiction over the case. It may apply any of the other theories, which is just and fair.

MODERN THEORIES ON FOREIGN TORT LIABILITY

• State of the most significant relationship

• Center of gravity

• Grouping of contracts

SAUDI ARABIAN AIRLINES VS. C.A.

297 SCRA 469 (1998)

AGREEMENT OF THE PARTIES AS TO APPLICABLE LAW

The parties to an agreement may stipulate as to the law which will govern in case of dispute arising therefrom. Such stipulation will be respected EXCEPT when prohibited law or public policy prohibits its application.

NORSE MANAGEMENT CO. VS. NATIONAL SEAMEN’S BOARD

117 SCRA 487

OVERSEAS EMPLOYMENT OF FILIPINO WORKERS, INCLUDING SEAMEN

• Traditional Rule: law of the country where injury or death occurred governs liability (including amount of compensation)

• If injury or death is based on tort:

– Lex loci actus (law of the place where the act was done)

– Lex loci delicti (place where the injury occurred or the liabilities of the parties are fixed)

• If the claim for injury or death is based on contracts:

– Lex loci solutionis (law of the place of performance )

– Kilberg Doctrine

• A rule to the effect that the forum is not bound by the law of the place of death as to the limitation on damages for wrongful deaths because such rule is procedural and hence the law of the forum governs on this issue.

• Law of the Flag

- Law of the country where the vessel is registered or whose flag it flies governs the terms and conditions of employment of its crew.

Carriage of Goods by Sea Act

• Liability of the carrier or ship

MITSUI O.S.K. Lines Ltd vs. C.A

287 SCRA 366 “(1998)

The suit is not for loss or damage to good, the question of prescription of action is governed not by COGSA but by Art 114 of the Civil Code

Law of Country of Registry of Vessel

• Article 2, Revised Penal Code

CHOICE OF LAW IN FAMILY RELATIONS

MARRIAGE

• Philippine Policy on Marriage

– Sec 2, Article XV, 1987 Constitution

– Article 220 of the Civil Code

• Extrinsic Validity of Marriage

– Lex loci celebrationis (law of the place of celebration)

• External conduct required of the parties or third persons especially of public officers, necessary to the formation of a legally valid marriage

– Article 2, Hague Convention on Celebration and Recognition of the Validity of Marriages

– Formal Requirement of Marriage

• Article 3, Family Code

– Article 26, Family Code

• Intrinsic Validity of Marriage

– Capacity or general ability of a person to marry, for instances defined by requirements of age and parental consent, but it does not refer clearly to an individual’s being permitted to marry a specific person or a person of determinate class.

Article 38, Family Code

• Effects of Marriage

– Personal relations between the spouses

• National law of the parties. If different nationalities, national law of the husband as long as not contrary to law, customs and good morals of the forum

– Property relations of spouses

• Internal law designated by the spouses before the marriage or in absence thereof the internal law of the state in which both spouses fix their first habitual residence is the governing law on matrimonial property regimes

• Article 80, Family Code

• Lex rei sitae

DIVORCE AND SEPARATION

The Hague Convention Relating to Divorce and Separation of 1902 provides that “the granting of divorce or separation must comply with the national law of the spouses and the law of the place where the application for divorce is made”.

• Divorce decrees obtained by Filipinos

– If obtained by Filipinos abroad – not valid

– If obtained by alien spouse – Filipino spouse is capacitated to remarry (Article 26, Family Code)

• Validity of foreign divorce between foreigners

– Hague Convention on the Recognition of Divorce and Legal Separation

– A foreign divorce will be recognized in all contracting states if at the date of the institution of the proceedings:

• The respondent or petitioner had his habitual residence there

• Both spouses were nationals of that state

• If only the petitioner was a national, he should have his habitual residence there.

• Annulment and Declaration of Nullity

• Grounds/Jurisdiction

– Lex loci celebrationis (traditional choice-of-law approach)

– Law of the state of marital domicile (policy-centered approach)

• Parental Relations

– Legitimacy of the child

• personal law of the parents – domicile/nationality

• Personal law of the father

• Law of the head of the family or husband or the mother (Germany)

– Paternity (civil status of the father/mother with respect to the child begotten by him/her)

– Filiation (status of the child in relation to his parents)

– Philippines

• Legitimacy of the child is governed by the national law of the parents. If the parents of the child belong to different nationalities, the legitimacy of the child is determined by the national law of the father (Art. 15, Civil Code)

Kuroda v Jalandoni, 83 Phil 171

2014-06-27T09:20:00.000-07:00

Facts

Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the

Philippines

was charged before the Philippine Military Commission for war crimes. As he was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Convention’s Rules and Regulations covering Land Warfare for the war crime committed cannot stand ground as the

Philippines

was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines.

Issue

1.Whether or not Executive Order No. 68 is constitutional

2.Whether or not the

is a party of interest to this case

3.Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice law profession in the

philippines

Ruling

The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which states that “The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation.” The generally accepted principles of international law includes those formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by United Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in violation of law and customs of war, are to be held accountable. In the doctrine of incorporation, the

Philippines

abides by these principles and therefore has a right to try persons that commit such crimes and most especially when it is committed against its citizens. It abides with it even if it was not a signatory to these conventions by the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its people have been equally, if not greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military Commission is a special military tribunal and that the rules as to the parties and representation are not governed by the rules of court but by the very provisions of this special law.

On the 3rd issue, the court ruled that the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the U.S. which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. The lest that we could do in the spirit of comity is to allow this representation in said trial.

IN THE EYES OF LAW WHO IS DEEMED THE MOTHER IN SURROGACY IN THE PHILIPPINES

2013-08-28T20:31:00.003-07:00

If A and B, who are married couple, agreed to hire C to implant their egg and sperm cells and bear the child in C’s own womb, who is the deemed to be the mother of the child in the eyes of the law in the Philippines?

It is apparent that A, B and C have entered into a contract of surrogacy. Surrogacy is the process where another woman carries and delivers a child in behalf of another couple. It involves the transplantation of the couple’s egg and sperm cells, usually through artificial insemination to the surrogate mother. By nature, the surrogate mother becomes the replacement of the natural mother of the child. In this case, A and B are considered to be the putative parents of the child while C takes the role of the surrogate mother. In the absence of surrogacy law in the Philippines, the legal issue now redounds to the question of who then becomes the mother of the child upon birth.

In the legal point of view, in the absence of law on surrogacy in the Philippines, C is deemed to be the mother of the child. A and B as the putative parents have no vested right conferred upon them by law to enforce a specific right that can be considered to be legally demandable and enforceable as the right to be recognized as the parents of the child, more so for A (wife) to claim as the lawful mother of the child that was born out of the womb of C. Thus, C is undisputedly considered to be the biological mother of the child.

The Family Code of the Philippines mainly provides the specific provision in establishing the paternity but not maternity relation to a child. Indeed, it is difficult to dispute the character of a biological mother of a child from whose womb the latter came from. The paternity and filiation provision in the Family Code of the Philippines that gave consideration in cases of artificial insemination is found in Article 164 that provides:

“Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and wife, provided that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child …..”

It is clear from the letters of the law that the artificial insemination contemplated by the law is that one made on the wife, giving no room for allowing a surrogate mother to whom the insemination may be done. Under this premise, the law does not confer upon A and B the right to claim parental right over the child that actually came from the womb of C to be considered as their legitimate child, unless they resort to adoption.

Another argument that may be raised is there was a contract for surrogacy among A, B and C. The said contract is against public policy and thus void ab initio. For a contract to be valid, the Civil Code of the Philippines requires the following requisites in Article 1318:

1. Consent of the parties

2. Object certain which is the subject matter of the contract

3. Cause of the obligation which is established

For an object to be a valid subject of a contract, Article 1347 of the Civil Code requires that the same should be within the commerce of men. A child is not within the commerce of men and thus cannot be an object of a contract. More so, the female reproductive organ is likewise beyond the commerce of men and is therefore cannot be a valid object of a contract. Article 1352 of the Civil Code of the Philippines provides that:

“Contracts without cause or with an unlawful cause produce no effect whatever. The cause is unlawful if it is contrary to law, morals, good customs, public order or public policy.”

Therefore, it can be concluded that a child or a human being and a female reproductive organ cannot be a lawful object of a contract, on the ground of unlawful cause as it is contrary to law, against public policy and good customs.

Even the Organ Donation Act of 1991 in the Philippines only sustains the validity of donating any part of the body of the donor only during such period of after or immediately before his death (Section 4 (b) – Organ Donation Act of 1991).

Owing to these existing provisions defined in the legal systems of the Philippines, C is the mother of the child in the eyes of the law.