(Blue Notes 2021) Day 1 (One Column Format)

 

 

 A T E N E O L A W S C H O O L  AT

DEAN JOSE MARIA G. HOFILEÑA Dean DEAN MA. NGINA TERESA V. CHAN-GONZAGA  Associate Dean for Academic Academic Affairs  AT  A T E N E O C E N T R A L B A R O P E R A T I O N S 2 0 2 1

GRACE ANN Q. BAJO TIMOTHY JACOB J. PALAFOX Chairpersons GRACE ANN Q. BAJO (Interim) MEG V. BUENSALIDO KATHLEEN KAE Z. ENDOZO MARIE KAYLA C. GALIT ARISTEO RAPHAEL T. MARBELLA III  Academic Committee Heads  Administrative Committee Committee Heads MELISSA GABRIELLE P. REMULLA FREEDOM JUSTIN B. HERNANDEZ  Administrative Committee Committee Understudies

MA. CRISTINA S. ASUNCION CARLOS ROSAURO N. MANALO  Academic Committee Understudies

CRIMINAL LAW

FACULTY ADVISERS

DEAN GIOVANNI F. VALLENTE JUDGE OSCAR B. PIMENTEL ATTY. JAIME G. HOFILEÑA

ATTY. RONALD C. CHUA JUDGE JOHN BOOMSRI S. RODOLFO ATTY. ALDRICH FITZ U. DY ATTY. AXEL RUPERT M. CRUZ SUBJECT HEADS

ERIN CANDICE P. CANCEKO KATHLEEN KAE Z. ENDOZO DOROTHY SAPPHIRINE HADITH DULNOAN UNDERSTUDIES

PATRICIA E. RAMOS CHRISTINA FRANCES S. DYCHIOCO CATHERINE NICOLE MANUEL

 

 

THE LAW PERTAINING TO THE STATE AND ITS RELATIONSHIP WITH ITS CITIZENS (formerly Political Law, Labor Law, and Taxation Law)  

FACULTY ADVISERS

ATTY. MARLON J. MANUEL DEAN SEDFREY M. CANDELARIA ATTY. RYAN JEREMIAH D. QUAN DEAN MA. NGINA TERESA V. CHAN-GONZAGA CHAN -GONZAGA ATTY. BENJAMIN C. YAN ATTY. DIANNA LOUISE R. WILWAYCO-DELA GUERRA Labor Law ATTY. MARIA LUISA ISABEL L. ROSALES ATTY. PATRICIA ANNE S. STA. MARIA DEAN LILY K. GRUBA ATTY. IGNATIUS MICHAEL D. INGLES ATTY. TERENCE CONRAD H. BELLO ATTY. BLESSILDA B. ABAD-GAMO ATTY. MICHAEL DANA N. MONTERO ATTY. MARK LEINAD R. ENOJO ATTY. IGNATIUS MICHAEL D. INGLES ATTY. EUGENE T. KAW ATTY. MIGUEL VICTOR C. DE LA FUENTE ATTY. ARIS L. GULAPA

Taxation Law

ATTY. CARLO L. CRUZ Political Law SUBJECT HEADS

KIM ABBYGALE C. RIBO MARK DAVID Q. VERGARA TIMOTHY K. ILOG DATU AMIR WAGAS BRIAN EARL A. LESHEN JOHN JOSHUA R. CARILLO Political Law

MA. SOFIA J. GATCHALIAN SHIKYNA JOY CASTILLO Labor Law IRIS GIZELLE S. AGUS PIA JUSTINE S. RODULFO KAYE GEOZEN T. EBUENGAN

Taxation Law UNDERSTUDIES

CELINA EUNICE CHEYENNE D. ABUEG BAI SHARIA L. TAMBUANG LUMINA ALINEA O. AQUINO GRACELLE TREASURE A. SAMSON THEA RUTH GRANCES GONZALES HAROLD BRYANT V. PASION MARY STEPHANIE C. CRUZ Political Law

RACHEL MEGAN R. AGLAUA MA. TERESA BEATRICE N. JOSE ALEXANDRA LOUISE T. DISTOR Labor Law JILL EILEEN P. CABAIS LILY AMELIA JOY M. LOFRANCO AINA RAE L. CORTEZ Taxation Law

 

 

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CREATIVES

JONATHAN DF. TORRES NICOLE ANN C. PAGLICAWAN JULIANNE BEATRICE N. ROSARIO RIA ALEXANDRA D. CASTILLO GAEL PAULINE R. MORALES

TECHNICAL

FINANCE

JOSEPH BILL P. QUINTOS SAMANTHA J. MAGAOAY FREEDOM JUSTIN B. HERNANDEZ

STEFI MONIKA S. SUERO KATHLEEN C. ROMINA SERMAE ANGELA G. PASCUAL

SPECIAL PROJECTS

LOGISTICS

AINA RAE L. CORTEZ LUMINA ALINEA O. AQUINO ANNA MARIE GRACE M. ANTONIO MARY STEPHANIE CABRERA CRUZ CLARISSE MAE D. ZAPLAN

CHRISTIAN GIO R. SENARLO MAEDEN M. BORCELANGO IMI LIZA B. ESPINA FRANCIS SABIN BELTRAN ANTHONY JEFFERSON Y. JULIO

MARKETING

PUBLIC RELATIONS

DONN MARIE ISABELLE BALINA PRISHA LEIGH D. CRUZ ALITHEA C. SORIANO AARON C. CHENG

MELISSA GABRIELLE P. REMULLA DANELLA DIANE D. DIMAPILIS REYNALDO M. REVECHE GRACIELLA RACHEL D. ROBLES

 

 

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TABLE OF CONTENTS  A. THE LA W PERTA PERTAINING INING TO THE STAT STATE E AND ITS RELA RELATIONSHIP TIONSHIP WITH ITS CITIZENS CITIZENS . 1   A.  CONSTITUTIONAL  LAW .......................................................................................................... 3  1. B ASIC PRINCIPLES OF POLITICAL L AW ................................................ ...................................................................................... ...................................... 3  2. BILL OF RIGHTS .................................................................................................. ............................................... ........................................................................ ....................... 9   3. COMPOSITION AND POWERS OF THE GOVERNMENT ORGANS ................................................. 31  4. JUDICIAL REVIEW ................................................................................................................... 43  5. SUPERVISION OF COURTS ................................................................................................... ................................................ ...................................................... ... 46  6. POWERS OF THE SUPREME COURT ........................................................................................ 47  7. QUALIFICATIONS, DISQUALIFICATIONS, AND SELECTION OF THE PRESIDENT, SENATORS,  MEMBERS OF THE HOR, JUSTICES AND JUDGES, THE OMBUDSMAN , AND CONSTITUTIONAL COMMISSIONERS  ....................................................................................................................... 48  8. IMMUNITY OF THE PRESIDENT, PRIVILEGES OF SENATORS AND MEMBERS OF THE HOR ......... 54  9. STRUCTURE OF GOVERNMENT ............................................................................................... 57  10. PROCESS OF LEGISLATION ................................................................................................ ............................................. ...................................................... ... 75  11. N ATURAL RESOURCES ......................................................................................................... 79  12.  A AMENDMENT AND REVISION OF THE CONSTITUTION (ART. XVII) ........................................... 83  B.  INTERNATIONAL  LAW ........................................................................................................... 85  1. SOURCES OF INTERNATIONAL L AW ......................................................................................... ..................................................... .................................... 85   2. RELATIONSHIP WITH DOMESTIC L AW .................................................. ...................................................................................... .................................... 88  C. LABOR LAW ............................................................................................................................ 91  1. B ASIC PRINCIPLES ................................................................................................................. 91  2. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP; TESTS ................................................ ............................................. ... 92  3. TERMINATION OF EMPLOYMENT .............................................................................................. 93  4. REQUIREMENTS OF L ABOR-ONLY CONTRACTING ..................................................................... ............................................... .................... 96 9 6  5. RIGHTS OF EMPLOYEES AND OF L ABOR ORGANIZATIONS; MEMBERSHIP IN UNIONS ................ 97  6. M ANAGEMENT PREROGATIVE ................................................... ............................................................................................... ............................................ 100   7. ILLEGAL RECRUITMENT OF OVERSEAS FILIPINO WORKERS .................................................... ................................................. . 102   8. REMEDIES (LABOR STANDARDS VIOLATORS) ............................................... ......................................................................... .......................... 104   D. TAXATION LAW .................................................................................................................... 105  1. B ASIC PRINCIPLES OF T AXATION IN THE CONSTITUTION ......................................................... ............................................... ........ 105 10 5  2. INCOME T AX ........................................................................................................ .................................................... .................................................................... .................. 107   3. V ALUE-ADDED T AX .............................................................................................................. 113  The Law Pertaining To The State And Its Relationship With Its Citizens & Criminal Law

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4. DONOR’S T AX ...................................................................................................................... 117  5. REMEDIES .................................................................................................. .............................................. ............................................................................. ........................... 118  B. CRIMINAL LAW..................................................................................................................... 127   A. B ASIC PRINCIPLES OF CRIMINAL L AW ....................................................................................... 128  B. JUSTIFYING, EXEMPTING, MITIGATING,  A AGGRAVATING, AND ALTERNATIVE CIRCUMSTANCES .....  ..... 134 1 34  C.  A APPLICATION OF INDETERMINATE SENTENCE L AW ................................................... .................................................................... ................. 146  D. SERVICE OF SENTENCE ................................................................................................... .............................................. ............................................................. .......... 147  E. EFFECT OF DEATH OF THE ACCUSED ........................................................................................ ............................................ ............................................ 149 14 9  F. CRIMES AGAINST PERSONS  ..................................................................................................... .................................................. ..................................................... 150  G. CRIMES AGAINST PROPERTY ................................................................................................... 163  H. CRIMES AGAINST LIBERTY ....................................................................................................... .................................................... ..................................................... 173  I. CRIMES AGAINST PUBLIC INTEREST ........................................................................................... 175  J. R.A. 9262 (ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004) .................. 178  K. R.A. 7610 (SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION, AND DISCRIMINATION ACT) ............................................. ................................................................................................ ...................................................................... ................... 181  L. R.A. 11313 (S AFE SPACES ACT) .............................................................................................. 185  M. R.A. 10173 (D ATA PRIVACY ACT OF 2012) .............................................................................. 188 

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THE LAW PERTAINING TO THE STATE AND ITS RELA REL ATIONSHIP WITH ITS CITIZENS formerly Political Law, Labor Law Law,, and Taxation Law 

 

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 A. THE LA W PERTA PERTAINING INING TO THE STATE AND ITS RELATIONSHIP WITH ITS ITS CITIZENS TOPIC OUTLINE UNDER THE SYLLABUS:  A.

CONSTITUTIONAL LA LAW W 1. Basic Principles of Political Law

2.

3.

4. 5. 6. 7.

8.

9.

a. General Principles b. Fundamental Powers of the State Bill of Rights a. General Principles b. Due Process c. Equal Protection d. Freedom of Expression e. Rights during Expropriation f. Searches and Seizures Composition and powers of the Government Organs a. SET/HRET b. CoA c. JBC d. CHR Judicial Review Supervision of Courts Powers of the Supreme Court Qualifications, disqualifications, and sel selection ection of the President, Senators, Members Members of the House of Representatives, Justices and Judges, the Ombudsman, and Constitutional Commissioners a. Executive Department b. Senators a and nd Members o off the H House ouse of Representatives Representatives c. Justices and Judges d. Ombudsman e. Constitutional Commissioners Immunity of the Presiden President, t, Privileges of Senators and Memb Members ers of the HoR a. Presidential Immunity b. Presidential Privilege Structure of Government

a. Powers of the President b. Legislative Privileges c. House of Representatives d. Legislative Department e. Powers of Constitutional Commissions f. Separation of Powers g. System of Checks and Balances 10. Process of Legislation 11. Natural Resources 12. Amendment and Revision of the Constitution (Article XVII) B. INTER INTERNATIONAL NATIONAL LAW 1. Sources of International Law Law   2. Relationship with Domestic Law Law   C. LABOR LAW

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Basic Principles Existence of Employer-Employee Relationship; Tests Termination of Employment Requirements for Labor-Only Contracting Rights of Employees and of Labor Organizations; Organizations; Membership Membership in Unions Management Prerogative Illegal Recruitment of OFWs

8.

Remedies (Labor Standards Violations)

D. TAXATION LAW 1. Basic Principles of T Taxation axation in the Constitution Constitution   2. Income Tax  3. Value-added Tax  4. Donor’s Donor’s Tax  Tax   5. Remedies  

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 A. CONSTITUTIONAL L AW 1. BASIC PRINCIPLES PRINCIPLES OF POLITICAL L AW a. General Princ ip les Q: What is Political Law?  A: The branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. ( Cruz, I.A. and Cruz, C.L., Philippine Political Law, 2014) 2014) Q: What What is a Constitution?  A:  A constitution is a system of fundamental laws for the governance and administration ad ministration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government g overnment is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. (Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 1997)  1997)    A written written instrument enacted by direct action action of the people by which the the fundamenta fundamentall powers of governm government ent are established, limited, and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic (Bernas, 1987 Philippine Constitution, 2009). Q: What What are are the fundamental fundamental rules and principles in const itutional cons truction ?  A: The following are the well-settled principles of constitutional construction: 1) 1)   Ordinary Meaning (Verba (Verba Legis). Legis ).   Verba legis  legis  dictates that wherever possible, the words used in the Constitution must m ust be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. (Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, 2010)   As much much as as poss possible, ible, the the words words of the Constitution should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based bas ed on the postulate that the framers and the people mean what they say. It is presumed that the framers and the people meant what what they said when they said it, and that this understanding was reflected in the Constitution and understood by the people in the way it was meant to be understood when the fundamental law was ordained and promulgated. Index animi sermo or sermo or "speech is the index of intention" and verba legis non est recedendum or recedendum or "from the words of a statute there should be no departure." (Ifurung v. Carpio-Morales, G.R. No. 232131, 2018)   2) Intent of the Framers Framers (Ratio (Ratio Legis Et Anima). Anima). However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima.. A doubtful provision must be examined in light of the history of the anima the times, and the condition and circumstances surrounding the framing of the th e Constitution. In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be prevented or remedied. Consequently, the intent of the framers and and the people ratifying

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the constitution, and not the panderings of self-indulgent self-indulge nt men, should be given effect. (Macalintal v. Presidential Electoral Tribunal, Tribunal, G.R. No. 191618, 2010)  2010)   3) Interpreted as a Whole (Ut ( Ut Magis Valeat Quam Pereat). Pereat ). The  The Constitution is to be interpreted as a whole. It is a well-established rule in constitutional construction that no one provision of the  the  Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered a and nd interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be b e allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Civil (Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815, 1991)  1991)   Q: What What is the Doctrine of Constitutio nal Suprema Supremacy? cy?  A: Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount, and supreme law of the nation, it is deemed written in every statute and contract. xxx It is a basic b asic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. (Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 1997) 1997)   Q: What What are the SelfSelf-Executing Executing and Non Self-Executing Self-Executing Provisions i n the Constitut ion?  A: 1) Sel f-Execu f-Exe cuti ti ng. ng .  A mandatory, positive command which is complete in itself and a nd which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in i n operation. It is per se judicially enforceable. xxx And when our Constitution declares that a right ri ght exists in certain spec specified ified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.  remedium.  (Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 1997)   Examples of Self-E Examples Self-Executing xecuting Provisions: a) When our our Constitution Constitution mandates that [i]n [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred. (Sec. 10, par. 2, Article XII, 1987 Constitution; Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 1997) 19 97)   b) b) Section  Section 11, Article XII of the Constitution, like other provisions provisi ons of the Constitution expressly reserving to Filipinos specific areas of investment, such as the development of natural resources and ownership of land, educational institutions and advertising business, is self-executing. (Gamboa v. Teves, G.R. No. 176579, 2011)  2011)  2) Non Self-Executing.  Self-Executing.  GENE GENERAL RAL RULE: RULE: A  A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. (Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 1997)  1997)  

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EXCEPTION:   The right to a balanced and healthful ecology (under Section 16, Article II, 1987 Constitution) is clear and enforceable. (Oposa v. Factoran, G.R. No. 101083, 1993)  1993)   Q: What is Sovereignty?  A: Sovereignty resides in the people and all government authority emanates from them. (Sec. 2, Art. III, 1987 Constitution) In Constitution) In this sense, sovereignty can be understood as the source of ultimate legal authority. Since the ultimate law in the Philippine system is the constitution, sovereignty, understood as legal sovereignty, means the power to adapt or alter a constitution. This power resides in the ”people” understood as those who have a direct hand in the formulation, adoption, and amendment or alteration of the Constitution. (Bernas, (Bernas, 1987 Philippine Constitution Commentary, 2009). 2009 ). Q: What What are the 2 types of Sovereignty ?  A:   1. Legal Sovereignty - the supreme power to make law; the supreme power to affect legal interests by legislative, executive, or judicial action. This is lodged in the people, but is normally exercised by State agencies. (Bernas, The The 1987 Constitution: Commentary, 2009 and Primer, 2002)  2002)  2.

Political Sovereignty - the sum total of all the influences in a state, legal and non- legal, which determine the course of law. (Bernas, The 1987 Constitution: Commentary, 2009 )  ) 

Q: What What is Sovereignty Sovereignty as an Auto-Limitation?  A: “It is to be admitted admitted that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence. (People v. Gozo, G.R. L-36409, 1973)  1973)   Q: What are the elements elements of a State?  A: a.

Government   - institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them

b.

Sovereignty  - power of the State to regulate matters within its own territory

c.

Population  - community of persons sufficient in number and capable of maintaining the continued Population  existence of the community and held together by a common bond of law.

d.

Territory Territory  - a definite area over which the State exercises sovereign jurisdiction.

NOTE:  The Bangsamoro Juridical Entity (BJE) was a state in all but name as it meets NOTE: The m eets the criteria of a s state tate laid down iin n the Montevideo Convention, namely, a permanent population, a defined territory, t erritory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it —  which has betrayed itself by its use of the concept of association — runs counter to the national sovereignty and territorial integrity of the Republic; hence, unconstit utional. utional.   (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 2008)  

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Q: What What is the Archipelagic Doctrine?  A: The archipelagic doctrine is embodied in Article I of the 1987 Const Constitution itution which provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941, 2018) 2018)   Q: What What is the Doctrine of Sovereign Immunity?    A: The State may not be sued without its consent. (Art. XVI, Sec. 3, 1987 Constitution) Constitution) Thus,  Thus, if the State does not give its consent through a law, it cannot be sued. This is also known as the “State Immunity from Suit” or “Doctrine of NonNon -Suability.” Where the government is "of the people, by the people, and for the people," such immunity from suit will only be the reaffirmation of the sovereignty of the people themselves as represented by their government in the face of the obvious impossibility of constituting the entire people into one single body to exercise the powers and enjoy the immunities of that sovereignty. (Metropolitan Transportation v. Paredes, GR No. Paredes, GR No. L-1232, 12 January 1948 citing 59 C. J., 307-309)  307-309)   Q: What is the Sovereign Equality of States?  A: In the case of foreign States, the rule is derived de rived from the principle of the sovereign equality of States, as expressed in the maxim par in parem non habet imperium. imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary at attitude titude would “unduly vex the peace of nations.” nations.”  The rules of International Law, however, are neither unyielding nor impervious to change. The increasing need of sovereign States to enter into purely commercial activities remotely connected with the discharge of their governmental functions brought about a new concept of sovereign immunity. This concept, the restrictive theory, holds that the immunity of the sovereign is recognized only with regard to public acts or acts jure acts jure imperii,, but not with regard to private acts or acts jure imperii acts jure gestionis. gestionis. (Republic of Indonesia v. Vinzon, G.R. No. 154705, 2003)  2003) 

b. Fund amental Powers of the State Q: What What is Polic e Power? Power?  A: The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. (Ynot v. Intermediate Appellate Court, G.R. No. 74457, 1987) It is vested in the Legislature and may be delegated, within limits, to local governments. (Philippine  Association of Service Exporters v. Drilon, G. G.R. R. No. 81958, 1988). Q: What What is th e P Power ower of Taxation ?  A: The power to tax is inherent in i n the State, such power being inherently legislative, based on the principle that taxes are a grant of the people who are taxed, and the grant must be made by the immediate representatives of the people; and where the people have laid the power, there it must remain and be exercised. (Commissioner of Internal Revenue v. Fortune Tobacco Corp., G.R. Nos. 167274-75, 2008)

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It is vested in the Legislature, and is delegated to: 1. Local legislative bodies, bodies, (Sec. 5, Art. X). 2. To a limited extent, the President when granted granted tariff powers. (Sec. 28(2), Art. VI). It is already well-settled that although the power to tax is inherent in the State the same is not true for the LGUs to whom the power must be delegated by Congress and must be exercised within the guidelines and limitations that Congress may provide. The Court expounded in Pelizloy Realty Corporation v. The Province of Benguet that: Benguet that:  The power to tax "is an attribute of sovereignty," and as such, inheres in the State. Such, however, is not true for provinces, cities, municipalities and barangays as they are not the sovereign; rather, there are mere "territorial and political subdivisions of the Republic of the Philippines."  (Batangas City v. Pilipinas Shell Petroleum Corp., G.R. No. 187631, 2015) Q: What What is th e P Power ower of Eminen t Domain?  A: Eminent domain "is the inherent power of a sovereign state to appropriate private property to particular use to promote public welfare". In the exercise of its i ts power of eminent domain, just compensation must be given to the property owner to satisfy the requirements of Sec. 9, Art. III of the Constitution. the Constitution.   Just compensation is the fair market value of the property. Fair market value is that "sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor". Judicial determination is needed to arrive at the exact amount due to the property owner. The power to expropriate is legislative in character and must be expressly conferred by statute. (National Power Corp. v. Co, G.R. No. 166973, 2009)  2009)   The power of eminent domain is an inherent competence of the state. It is essential to a sovereign. Thus, the the Constitution does not explicitly define this power but subjects it to a limitation: that it be exercised only for public use and a nd with payment of just compensation. Whether the use is public or whether the compensation is constitutionally just will be determined finally by the courts. (National Power Corp. v. Posada, G.R. No. 191945 , 2015, J. Leonen) Leonen )  Q. What a are re the diff erences among t he three powers of t he State State? ?  A:   POLICE POWER Government  AUTHORITY

PURPOSE

PERSONS  AFFECTED

EFFECT

subdivisions

or

its

EMINENT DOMAIN

TAXATION

political May be granted to public Gov’t service companies public utilities

or

its

political

or subdivisions

Regulation for promotion of Property is “taken” public Property is taken for the general welfare and the public use or benefit  –   –  support of Gov’t Gov’t   good – good  – not  not compensable compensable Community or class of entities or  An entity or Individual Individual individuals

Community or class of entities or individuals

No transfer of title, at most there Transfer of the right to Becomes part of public is a restraint on the injurious use property whether it be funds of the property ownership or to a lesser right

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BENEFITS RECEIVED BY PERSON  AFFECTED

No direct and immediate benefit, Market value of property Receives equivalent of only what may arise from taken the tax in form of maintenance of a healthy protection and benefits economic standard of society from government

 AMOUNT

What is sufficient to cover cost of Market value of property Generally no limit; subject license and other necessary taken to due process expenses

Q. What What are the requirements requirements f or the validity of local ordinance?  ordinance?    A:  For an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the proc edure prescribed prescribed by law , it must also conform to the following su bstantive requireme requirements nts:: (COD-PUT) 1. Must not contravene with the Constitution and any other statute 2. Must not be unfair or Oppressive 3. Must not be partial or Discriminatory 4. Must be general and consistent with Public policy 5. Must not be Unreasonable 6. Must not prohibit, but may regulate Trade (City of Manila v. Laguio, G.R. No. 118127, 2005). The tests tests are  are divided into the formal (i.e., whether the ordinance was enacted within the corporate powers of the LGU, and whether it was passed in accordance with the procedure prescribed by law),, and the substantive (i.e., law) (i.e., involving in herent merit, like the conformi ty of th e ordinance with the limitations und er the Constitu Constitu tion and th e statutes, as well as with the requirements of fairness and reason, and its consistency with public policy). policy). (Legaspi v. City of Cebu, GR No. 159110, 2013 citing City of Manila v. Laguio, GR No. 118127, 2005)  2005)  

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2. BILL OF RIGHTS a. General Princ ipl es Q: Explain Explain the Bill o f Rights.  A: The Bill of Rights governs the relationship between the individual and the state. (People v. Marti, G.R. No. 81561, 1991) The provisions in the Bill of Rights are self-executing. (Manila Prince Hotel v. GSIS, G.R. No. 122156, 1997) The Bill of Rights is designed to preserve the ideals of liberty, li berty, equality and security against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-31195, 1973) The purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political poli tical controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. (Philippine Blooming Mills Employment Organization, citing West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 62 4, 638) 638)   Q: Are private private acts subject to the pro tection of the Bill of Rights?  A: No. By definition, the Bill of Rights is a set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of the government as a means of securing the enjoyment of those rights. (Nachura). (Nachura).   If the violation is by private individuals, the remedy is found in the Civil Code, or if proper, in the Revised Penal Code. (Bernas, The 1987 Constitution of the Republic Repu blic of the Philippines, 2009 ed.)  ed.)   Q: Is Is there a hiera hierarchy rchy of rights in Articl e III III? ?  A: Yes. While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Property and property rights can be lost thru prescription; but human rights are imprescriptible. The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose pu rpose — that the law is neither arbitrary nor discriminatory nor oppressive —  would suffice to validate a law which restricts or impairs property rights. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., G.R. No. L-31195, 1973).  1973).   The freedom of expression and the right of peaceful assembly are superior to property rights.  rights.   (Phil. Blooming Mills Emp. Org. v. Phil. Blooming Mills Co., G.R. No. L-31195, 1973).

b. Due Process Q: Explain Due Process.  A: From the earliest inception of constitutional government in our country, the concepts of notice and hearing have been fundamental. A fundamental. A fai r and en enlili ghten gh ten ed sy stem st em of jus j us ti tice ce wo ul d be im poss po ss ib ible le wi thou th ou t

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the right to notice and to be heard.   The emphasis on substantive due process and other recent ramifications of the due process clause sometimes lea leads ds bench and an d bar to t o overlook and forget that due process was initially concerned with fair procedure. Every law student early learns in law school the definition submitted by counsel Mr. Webster in Trustees of Dartmouth   College College   vs vs.. Woodward Woodward (4  (4 Wheat. 518) that due process is the equivalent of law of the land which means "the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. . . that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." A sporting opportunity to be heard and the rendition of  ju  judg dgme ment nt on ly aft er a law ful fu l h heari eari ng by a co ld ldly ly neu tr al and an d i mp mpart art ial ju judg dg e are es s enti al el emen ts of procedural due process.  process.  (Azul v. Castro, G.R. No. 52241, 1984) Q: Who are protected by Due Process?  A: 1. All natural persons 2. Artificial persons – persons – only  only insofar as their property is concerned. (Smith Bell & Co. v. Natividad, G.R. No. 15574, 1919).  1919).  Q: What What are the 2 types of Due P Proc roc ess?  A: The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government "procedural "procedural due process" process " and "substantive "substantive due process." process ." (White Light Corporation v. City of Manila, G.R. No. 122846, 2009)  2009)   Q: What is Substantive Due Process?  A: If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive Due Process completes the protection envision ed by the due process c lause. It inquires whether the government has sufficient justific ation for depriving a person of lif e, liberty, or property. property.  (White Light Corporation v. City of Manila, G.R. No. 122846, 2009) 2 009) Substantive due process requires that laws be [1] grounded on reason and [2] be free from arbitrariness. The arbitrariness.  The government must have sufficient justification for depriving a person of life, liberty, or property. Essentia Essentially, lly, substantive due proc ess is satisfied if the deprivation is done in the exercise of the police power of the State.  State.  (Provincial Bus Operators Association of the Philippines v. DOLE, G.R. No. 202275, 2018) Requisites of Substantive Due Process:  Process:   Laws which interfere with life, liberty, and property satisfy substantive due process when there is: 1. Lawful Subject  –   –  The interests of the public generally, as distinguished from those of a particular class, require such interference; and 2. Lawful Means – Means  – The  The means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. Q: What is Procedural Due Process?  A: Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. (White Light Corporation v. City of Manila, G.R. No. 122846, 2009)

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The essence of procedural due process is embodied in the basic requirement of [1] notice and [2] a real opportunity to be heard. (Vivo v. PAGCOR, G.R. No. 187854, 2013)  2013)   While it is true that the right to due process safeguards the opportunity to be heard and to submit any evidence one may have in support of his claim or defense, where the opportunity to be heard is accorded, and the party can “present its side” or “defend its interest in due course”, there is n no o denial of due process because what the law proscribes is the lack of opportunity to be heard. (Oca v Custodio, GR 199825, 2017) Q: Is Publication Publication always required as part of Due Process?  A: Yes, as a general general rule. These requirements of publication and filing were put in place place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict compliance. (Republic v. Pilipinas Shell, G.R. No. 173918, 2008)  Also, every every agency shall file with the Office of the Na National tional Administrative Administrative Register (ONAR) in the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (Section 3 of Chapter 2, Book VII of the  Administrative  Administra tive Code of 1987) However, not all rules and regulations adopted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. According to the UP Law Center’s guidelines for receiving and and publication of rules and regulations, interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the Administrative agency and not the public, need not be filed with the UP Law Center. (The Board of Trustees of the GSIS v. Velasco, G.R. No. 170463, 2011) Q: Is Is constit utional due process different from statutory due proc ess?  A: Yes. The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by the Bill of Rights. On the other hand, statutory due process is a procedure created by law, which upholds the constitutional right of a person to due process. Q: Is Is the right to a preliminary investigation a Constitutional right?  A: No, it is merely a statutory right. It is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. (Serapio v. Sandiganbayan, G.R. No. 148468, 2003).  2003).   Q: What What are the requisites of a valid exercise of police power in co nnection with substantive due process?  A: 1. The interest of the public generally, as distinguished from those of a particu particular lar class, require such interference. 2. That the means are reasonably reasonably necessary for the accomplishment o off the purpose and not unduly oppressive upon individual. (U.S. v. Toribio, G.R. No. L-5060, 1910).  1910).  

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Q: What What are the three (3) (3) tests of judicial sc rutiny to determine reasonableness reasonableness of classifications made by statutes or ordinances?  A: Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of classifications. 1) Strict Scrutiny Test Test  - Applying strict scrutiny, scrutiny , the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. in terest. In terms of judicial review of statutes or ordinances, S ordinances, Strict trict scruti ny refers ny  refers to the standard for determining the quality and the amount amount of g overnmental inte interest rest broug ht to justi fy the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.  protection.  The United States Supreme Court has expanded expanded the scope of str strict ict scrutiny to protect fundamental fundamental rights such as suffrage, judicial access and interstate travel. (White Light Corp. v. City of Manila, G.R. No. 122846, 2009)  2009)   The Strict Scrutiny Test Test applies  applies when a classification either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed under the Constitution, o orr (ii) burdens suspect classes. (Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442, 2017)  2017)   EXAMPLE: Curfew EXAMPLE:  Curfew ordinance on minors, which burdens the right to travel, freedom of religion, and freedom of association, without showing that the curfew is the least restrictive means. (SPARK v. Quezon City, G.R. No. 225442, 2017)  2017)   2) Heightened Or Intermediate Scrutiny Test  Test   - Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. (White Light Corp. v. City of Manila, G.R. No. 122846, 2009)  2009)   The intermediate scrutiny test  test   applies when a classification does not involve suspect classes or fundamental rights, rights , but requires heightened scrutiny, such as in classifications based on gender and legitimacy. legitimacy . (SPARK v. Quezon City, G.R. No. 225442, 2017)  2017)   NOTE:  Intermediate test finds its origin from US jurisprudence whereby it has treated gender or illegitimacy NOTE: Intermediate as a protected class.

HOWEVER, the Supreme Court has applied the Intermediate Scrutiny Test to regulations or HOWEVER, rest ri cti on ons s aff ecti ng t he FREEDOM FREEDOM O OF F SPEECH SPEECH AND EXPR EXPRESS ESSION ION.. Some notable cases that applied the "Intermediate Scrutiny Test" to free speech/expression cases are: a) Nicolas-Lewis v. Commission on Elections, G.R. No. 223705, [August 14, 2019],   which rendered as unconstitutional the ban on campaigning overseas during the 30-day overseas voting period. Being a content-neutral regulation (i.e. ban on campaigning campaignin g overseas), the Court measured the same against the intermediate test, viz.: (1) the regulation is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) such governmental interest is unrelated to the suppression of the free expression; and (4) the incidental restriction on the alleged freedom of expression is no greater than what is essential to the furtherance of the governmental interest.

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The point of inquiry focuses on the fourth criterion in the said test, i.e., that the regulation should be no greater than what is essential to the furtherance of the governmental interest. The failure to meet the fourth criterion is fatal to the regulation's validity as even if it is within the Constitutional power of the government agency or instrumentality concerned and it furthers an important or substantial governmental interest which is unrelated to the suppression of speech, the regulation shall still be invalidated if the restriction on freedom of expression is greater than what is necessary to achieve the invoked governmental purpose. b) The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, [January 21, 2015],  2015],   which rendered as unconstitutional the COMELEC restriction on church tarpaulins with political messages (i.e. Team Patay vs. Team Buhay). The COMELEC's act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political consequences. These should be encouraged, more so when exercised to make more meaningful the equally important right to suffrage. The restriction in the present case does not pass even the lower test of intermediate scrutiny fo r content -ne -neutral utral regulations. regulations. The  The action of the COMELEC in this case is a strong deterrent to further speech by the electorate. Given the stature of petitioners and their message, there are indicators that this will cause a "chilling effect" on robust discussion during elections. 3) Rational Rational Basi s Test Test  – The  – The Supreme Court has often applied the rational rational basis test mainly in analysis of equal pro tection challenges. Using the rational basis examination, laws or ordi nances a are re upheld if they rationally fur ther a legitimate governmental interest.  interest.  (White Light Corporation v. City of Manila, G.R. No. 122846, 2009)  2009)   The rational basis test applies test  applies to all other subjects not covered by the first two tests. (SPARK v. Quezon City, G.R. No. 225442, 2017)  2017)   Under the rational basis test (a.k.a. (a.k.a. ra rational tional relation test or rational basis scrutiny) , the Court shall: (1) discern the reasonable relationship between the means and the purpose of the ordinance; and (2) examine whether the means or the prohibition (e.g. against aerial spraying) is based on a substantial or reasonable distinction. A reasonable classification includes all persons or things similarly situated with respect to the purpose of the law. (Mosqueda v. Pilipino Banana Growers & Exporters Association, Inc., G.R. Nos. 189185 & 189305, 2016)  2016)   EXAMPLE: The ordinance ban on pesticides without distinguishing aerial spraying from ground spraying was rendered as unconstitutional since there was no substantial distinction between the two. Hence, failing the rational basis test. (Mosqueda v. Pilipino Banana Growers & Exporters Association, Inc., G.R. Nos. 189185 & 189305, 2016)  2016)   Q: What What are the ele elements ments of due process in judicial proc eedings?  A: 1. An impartial impartial court or tribunal tribunal clothed with judicial power to hear hear and determine the matter bef before ore it. 2. Jurisdiction must must be lawfully acquired acquired over the person or subject matter. 3. Judgment must be rendered upon a lawful hearing. Espaol ol –  – Filipino  Filipino v. 4.  The defendant must be given notice and an opportunity to be heard. (El Banco Espa  

Palanca, G.R. No. L-11390, 1918)

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Q: What What are the ele elements ments of due process in administrative proceedings?  A: (HIP DESK) 1. The right to a Hearing, which includes the right to present one’s case and submit evidence in support thereof. 2. The tribunal or body or any of its judges must act on its or his own Independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. 3. The decision mu must st be based on the evidence Presented at the hearing or at least contained in the record and disclosed to the parties affected. 4. The Decision must have something to support itself. 5. The tribunal must consider the Evidence presented. 6. Evidence supporting the conclusion must be Substantial. 7. The board or body should, in all controversial questions, render its decision in such such a manner that the parties to the proceeding can K now the various issues involved and the reasons for the decision rendered Q: What are the instances when hearings are not necessary?    A: 1. When administrative agencies are exercising their quasi-legislative fun functions ctions 2. When administrative administrative agencies are exercising exercising their quasi-judicial functions where where the hearing hearing is 3. 4. 5. 6. 7. 8. 9.

temporarily pending. Abatement of nuisance per se Granting by courts of provisional remedies Cases of preventive suspension Removal of temporary temporary employees in the government Issuance of warrants warrants of distraint and/or and/or levy by the BIR C Commissioner. ommissioner. Cancellation of the passport of a person charged charged with a crime. Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Q: What What are the minimum standards o f due process in s tudent disci plinary cases?    A:   1. The students must must be informed informed in writing of the nature and the the cause of any any accusation against them them 2. 3. 4. 5.

They shall have have the right to answer the charges against against them, with the assistance of counsel, if desired They shall be informed of of the evidence against them They shall have the right to adduce evidence in their own behalf The evidence must be duly duly considered by the investigating committee or official designated designated by the school authorities to hear and decide the case.

Q: Is the Philippine Military Academy (PMA) bound by the due process standards in student disciplinary cases?    A: Yes. The PMA is not immune from the strictures of due process. The statement that “a cadet can be compelled to surrender some civil rights and liberties in order for the Code Cod e and System to be iimplemented” mplemented” simply pertains to what cadets have to sacrifice in order to prove that they are men or women of integrity and honor, such as the right to entertain vices and the right to freely choose what they want to say or do. In the context of disciplinary investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the cadets’ rights to privacy and to remain silent. (First Class Cadet Aldrin Jeff P. Cudia of the PMA v. The Superintendent of the PMA, G.R. No. 211362, 2015.)  

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Q. Wha Whatt are the requireme requirements nts o f due process in deport ation proceedings?    A:   1. Charges against alien must specify the acts acts or omissions comp complained lained of 2. Preliminary investigation – investigation  – to  to determine whether there is sufficient cause to charge respondent with deportation 3. Follow rules of criminal procedure 4. Private prosecutors should NOT NOT be allowed to to interve intervene. ne. Q: Does Does media coverage in cri minal cases violate the right of t he accus accus ed to a fair trial?    A: Not necessarily. The right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge j udge to render a bias bias-free -free decision. The Court partially granted pro hac vice  vice petitioners’ prayer for a live broadcast of the trial court proceedings, subject to strict guidelines. guidelines. (In  (In Re: Petition For Radio And TV Coverage Of The Multiple Murder Case Against Zaldy Ampatuan Et Al.,  A.M. No. 10-11-5-SC, 2011.)  Q: What What is th e Void Void f or Vagueness Doctr ine?    A:  A law is vague when it lacks comprehensible standards such that men of common intelligence intell igence must necessarily guess as to its meaning and differ as to its application. It should be distinguished from those couched in imprecise language which can be b e saved by proper construction. (Romualdez v. Sandiganbayan, G.R. No. 152259, 2004).    A vague statute is repugnant to the Constitution Constitution in two (2) resp respects: ects:  1. It violates due process for failure to accord persons, persons, especially the parties targeted by it, fair fair notice of what conduct to avoid; and 2. It leaves law enforcers unbridled unbridled discretion in carrying carrying out its pro provisions visions and becomes an arbitrary flexing of the Government muscle. (Estrada v. Sandiganbayan, G.R. No. 148560, 2001)  2001)   Q: Does Does the RH Law suffer void f or vagueness due to the insu fficiency of d efinition of s ome terms?    A: No. In determining whether whether the words used in a statute are vague, words words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it must be construed together with the other parts and kept subservient to the general intent i ntent of the whole enactment.    As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must be made to Section 4(n) of the RH Law which defines a "public health service provider" (Imbong v. Ochoa, G.R. 204819, 2014).   Q: What What is the overbreadth doctrine?    A: Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.  As di st in guis gu is hed fr om the th e vag ueness uen ess do ct ri ne, the th e overb ov erbread read th doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even even though s ome of it is protected.  protected.  (Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461, 2010)   2010) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free

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speech cases. (Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461, 2010)   Q: When do the Void-for-Vagueness Doctrine and the Overbreadth Doctrine apply?  A: General rule: The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapplicable for testing the validity of penal statutes. Exceptions: 1. When a penal statute is challenged as applied (i.e. there is an actual charge). charge) . 2. When a penal statute encroaches encroaches upon the freedom of speech, a fa facial cial challenge grounded on the overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, 2014)  2014)   Q: Distinguish “As“As-Applied” Challenge Challenge vs. Facial Challenge?  Challenge?   A: Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing pinp ointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. General Rule: In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground  –   –  absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibit s one from assailing the constitution ality of the statute based solely on the violation of the rights of third persons not before the court . This rule is also known as the prohibition against third-party standing. Exception: A petitioner may for instance mount Exception: A mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute statute.. Rationale: To counter the "chilling effect" on protected speech that comes from statutes violating free speech. (Disini v. Sec. of Justice, G.R. No. 203335, 2014) Q: Was the Human Security Act of 2007 (RA 9372) that sought to punish terrorism void for vagueness and overbreadth?

Anti-Terrorism ism Council, Council, the  the Court ruled: 1)  A: No. In Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terror  A facial invalidation of a statute statute is allowed only in free speech cases, wherein certain ru rules les of constitutional litigation are rightly excepted; 2) Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally leg ally impermissible absent an actual or imminent charge against them. IN FINE, Estrada FINE, Estrada  and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of

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prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."  As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under  RA  RA 9372. Even 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates contem plates speculative counseling on a statute's future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. (Southern Hemisphere Engagement Network, Inc. v.  Anti-Terrorism  Anti-Terro rism Council, G.R. Nos. 178552, 17 178554, 8554, 178581, 178890, 179157 & 179461, 179461, 2010)   Q: Is “aiding or abetting” in the commission of cyber libel overbroad?    A: Yes Yes.. Except for the original author of the assailed statement, the rest are knee-jerk sentiments senti ments of readers who may thing littler or haphazardly of their response to the posting. Unless the law takes to account the unique circumstances and culture of cyberspace, such a law will create a chilling effect on those who express themselves through cyberspace. Thus, Section 5, which punishes “aiding or abetting” libel on cyberspace is void. (Disini v. Secretary of Justice, G.R. No. 203335, 2014.)  

c. Equal Protection Q: What What is th e Equal Equal Protecti on Clause (or Equal Protectio n of th e Law)?  A: The equal protection of the law clause merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities li abilities enforced. The equal p protection rotection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. op erate. It does not demand absolute equality among residents. (Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957)  1957)   The fundamental right of equal protection of the laws is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial s ubstantial distinctions that make real differences, one class may be treated and regulated differently from another. (Tiu v. Court of Appeals, G.R. No. 127410, [January 20, 1999], 361 PHIL 229-245)  229-245)   REQUISITES: 1. It must be based on substantial distinctions; 2. It must must be germane tto o the purpose of the law; 3. It must not be be limited to existing conditions only; and 4. It must must apply equally to all members of the class (PAGCOR v. BIR, G.R. No. 172087, 2011).  2011).  Q: Is Is there a substantial distinc tion b etwee etween n elective and appointive officials?  A: Yes. Elective officials occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. Appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Eleazar (Eleazar P. Quinto and Gerino A. Tolentino, Jr., vs. COMELEC, G.R. No. 189698, 2010). 2010 ).

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Q: Does Section 6 of the Cybercrime Prevention Act, punishing by one degree higher crimes committed thro ugh the internet, violate e equal qual protection?  A: No. There is a substantial distinction between crimes committed through the use of information technology and similar crimes using other means. In every cybercrime, the offender often evades identification and is able to reach more victims or cause more harm. (Disini vs. Secretary of Justice, G.R. No. 203335, 2014). Q: Does Does the RH Law violate the right to equal pr otection o f the law such t hat it discr iminates against against the poor as it makes them the primary target of the government program that promotes contraceptive use rather rather than promoting reprodu ctive health health among the poor?  A: No. To provide that the poor are to be given priority in the th e government's reproductive health care program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the health development of the people. Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues iss ues and desire to have children. Thus, there is no merit to the contention that the RH Law only seeks to target the poor to reduce their number. (Imbong (Imbong v. Ochoa, G.R. 204819, 2014). Q: What What is the doctrine of Relative Relative Unconstitutionality?  A:  A: A  A statute valid valid at one time may become void at another time time because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. This doctrine was invoked in a case to invalidate RA 7653, which started as a valid measure of legislative power applicable to Central Bank employees, but, with the enactment of subsequent laws exempting all rank and file employees of all GFIs from the Salary Standardization Law, was rendered void on account of a violation of the equal protection clause. (Central ( Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, 2004) Q: What What is suspect classification?  A:  A suspect classification is one where distinctions are made based on the most invidious bases for classification that violate the most basic human rights, i.e., on the basis of race, national origin, alien status, religious affiliation and, to a certain extent, sex and sexual orientation. (Serrano v. Gallant, G.R. No. 167614, 2009)   2009)

d. Freedom Freedom of Expression Q: What What are the 2 aspects o f Freedom of Expressi on?  A: 1. Prior restraint restraint  - Official government restrictions on the press or other forms of expression in advance of actual publication or dissemination are constitutionally impermissible. (Chavez v. Gonzales, G.R. No. 168338, 2008).  2008).  2. Subse Subsequent quent punis hment hment  - The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint. (Chavez v. Gonzales, G.R. No. 168338, 2008).  2008). 

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Q: What What are the exceptions to freedom from prior r estraint?  A: 1. When the nation is at war 2. Obscene publications 3. Security of community life may may be protect protected ed against incitements incitements to violence or overthrow of orderly 1 931).   government. (Near v. Minnesota 283 U.S. 697, 1931). Q: Distingui Distingui sh co ntent-based ntent-based from c ontent-neutral ontent-neutral regulations.  A: 1. ContentContent-based based restricti on is on  is based on the subject subj ect matter of the utterance or speech and thus treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression. 2. ContentContent-neutral neutral regulation regulation is  is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standard. Content-neutral regulations of speech or of conduct that may amount to speech are subject to lesser but still heightened scrutiny. (Newsounds Broadcasting Network v. Dy, G.R. Nos. 170270 & 179411, 2009). 2009).   Q: What What is the standard for testing the validity o f content-based regula regulations? tions?  A: Clear and Pres Present ent Dang er Test  (Content-based regulations) Speech may be curtailed if the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. ((Chavez Chavez v. Gonzales, G.R. No. 168338, 2008) 2008) EXAMPLE: Prohibition EXAMPLE:  Prohibition on obscenity or libel because what is sought to be regulated is the speech itself. Q: What What is the standard for testing the validity o f content-neutral regulations?  A: Inter med mediat iat e Scr ut utin in y Test (Content-neutral regulations) Content-neutral government regulation is sufficiently justified if: 1. it is within the constitutional p power ower o off the Government 2. it furthers furthers an important important or substantial governmental governmental int interest erest 3. governmental interest is unrelated to the suppression suppression of free expression 4. the incident restriction on alleged freedom of speech & expre expression ssion is no greater greater than is essential to the furtherance of that interest. (Chavez v. Gonzales, supra.) EXAMPLE: Restriction on size of tarpaulin or banner ( Archdiocese of Bacolod v. COMELEC EXAMPLE: Restriction COMELEC)) or period of campaigning overseas (Nicolas-Lewis (Nicolas-Lewis v. COMELEC) COMELEC ) because what are being sought to be regulated are incidents of speech (i.e. size and period). Both regulations were struck down as unconstitutional. Q: The COMELEC ordered to immediately remove a 6x10ft tarpaulin displaying the names of electoral ele ctoral candidates who did and did not v ote for the adoption o f the RH Law under the headings “Team Buhay” and “Team Patay. Patay .”  Did the COMELC order violate the petitioners’ right to freedom of speech?  A: Yes. The Court found that there is no compelling and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment of the right of freedom of expression. There is no reason for the State to minimize the right of non-candidate petitioners to post the tarpaulin in their private property. (Archdiocese of Bacolod v. COMELEC, G.R. No. 205728, 2015)

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Q: COM COMELE ELEC C ordere ordered d a prohi bition o n posti ng of election c ampaign ampaign m aterials aterials dur ing an election period in PUVs PUVs and transport terminals. Is Is the prohi bition valid?    A: No. The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively inhibited from expressing their preferences under the pain of indictment for an election offense and the revocation of their franchise or permit to operate.   Resolution No. 9615 are content-neutral regulations since they merely control the place where election campaign materials may be posted. Applying the O’Brien Test, it is conceded that Resolution No. 9615 furthers an important and substantial governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said prohibition is i s unrelated to the suppression of free expression. However, Resolution No. 9615 is not within the constitutionally delegated power of the COMELEC, thus fails the first criterion of the O’Brien Test.   Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization of all franchises or permits for the operation, inter alia, of transportation and other public utilities. The COMELEC’s constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the same. There is a marked difference between the franchise or permit to o operate perate transportation for the use of the public and the ownership per se of the vehicles used for public transport. In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by private persons. (1-UTAK v. COMELEC, G.R. G.R. No. 206020, 20 2015) 15) Q: What What are the tests for valid governmental interference?  A: 1. Clear And Present Danger Rule – Rule – words  words are used in such circumstance and of such nature as to create a clear and present danger that will bring about substantive evil that the State has the right to prevent. (Focus on content + context) (Schenck (Schenck v. US, 249 U.S. 47, 1919)  1919)   2. Dangerous Tendency Rule – Rule  – words  words uttered create a dangerous tendency of an evil which State has the right to prevent. (Focus on content) (Cabansag v. Fernandez, et al., GR No. L-8974, 1957)  1957)   3. Balancing of Interests Test – Test  – when  when particular conduct is regulated in interest of public order and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of the 2 conflicting interests demands the greater protection under the particular circumstances presented. (American presented. (American Communications Assn. v. Douds, 339 U.S. 382, 1950).  1950).   Q: What What is the test test for obsc enity? (M (Miller iller Doctrine)  A: 1. Whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest. 2. Whether the work depicts depicts or describes, in patently off offensive ensive way, sexual sexual conduct specifically defined by the applicable state law. 3. Whether the the work, taken taken as a wh whole, ole, lacks serious literary, literary, artistic, political o orr scientific value value.. (Miller v. California, 413 U.S. 15, 1973).  1973).  

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Q: Does restricting or blocking access to computer data under the Cybercrime Prevention Act violate freedom freedom of speech?  A: Yes. The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him jud judge, ge,  jury, and executioner all rolled into in to one. Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. (Disini v. Sec. of Justice, G.R. No. 203335, 2014; See case for other provisions relating to freedom of speech, which were upheld by the court). Q: What What is commercial speech?    A: Commercial speech is speech that does no more than propose a commercial transaction. Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment:  1. Speech must not not be false or misleading or proposing an illegal activity; 2. Governmental interest sought to be served served by th the e regulation must be substantial; 3. The regulation regulation must directly advance the governmental governmental interest asserted; and and 4. The regulation must not be overbroad – overbroad  – not  not more extensive than is necessary to serve that interest. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, 1980) 19 80)   Q: What is Symbolic Speech?  A: When “speech” and “non“non-speech” elements are combined in the same course of conduct, a sufficiently important government interest in regulating the non-speech element can justify incidental incide ntal limitations on free speech. A governmental regulation is sufficiently justified if: i f: 1. It is within within the the Constitutional Constitutional power of the the gover government; nment; 2. It furthers furthers an important or substantial governmental governmental interest unrelated to the suppression of free expression; and 3. If the incidental restriction on alleged freedom is no greater than is essential to that interest (U.S. v. O’Br ien, ien, 391 U.S.  U.S.  367, 1968)  1968)  Q: Wha Whatt is the doctrine of fair comment?  A: Fair commentaries on matters of public interest are privileged and constitute a valid defense d efense in an action for libel or slander. The doctrine of fair comment means that while in general, every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable; unless it be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on facts, then it is immaterial that the opinion happens to be mistaken as long as it might reasonably be inferred from the facts. (Borjal ( Borjal v. CA, GR No. 126466, 1999). 1999 ).

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Q: Can rallyists proceed to conduct a rally even if the mayor does not act on their applications within a rea reasonable sonable time?    A: Yes. After two days from submission of the application with the local mayor and the corresponding inaction of the said mayor, the rallyists may conduct their rally in accordance with their application without the need to show a permit from the mayor, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. (Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, GR No. 169838, 2006). NOTE:: The two-day rule is based on Sec. 6(b) of BP 880, not merely on the facts of the case. NOTE Q: What is a Heckler’s veto?  veto?    A: It involves situations in which the government attempts to ban protected speech because it might provoke a violent response. The mere possibility of a violent reaction to protected speech is simply not a constitutional basis on which to restrict the right to speak. (Roe v. Crawford, No. 06-3108, 2008). 2008 ). However, when a speaker passes the bounds of argument or persuasion and undertakes un dertakes incitement to riot, the police are not powerless to prevent a breach of the peace. (Feiner v. New York, 340 US 315, 1951). Q: Distingui Distingui sh hate speech speech from fi ghting wor ds.  A: Hate speech is speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. There is no hate h ate speech exception to free speech. The proudest boast boa st of our free speech jurisprudence is that we protect p rotect the freedom to express “the thought that we hate.” (Matal v. Tam, 137 S. Ct. 1744, 2017)   Fighting words are words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (Chaplinsky v. New Hampshire, 315 U.S. 568, 1942). Fighting words are not entitled to constitutional protection and may be penalized. (Chavez v. Gonzales, G.R. No. 168338, 2008)  2008)  

e. Rights During Expropriation /Eminent /Eminent Domain Q: The Wharight What t is eminent domain?power to appropriate, not only the public, but even the private property of all  A: of the sovereign citizens within the territorial sovereignty, to public purposes. This power is exercised by the national government but may be delegated to local governments and public utilities. (Barangay Sindalan vs. Court of Appeals, G.R. No. 150640, 2007). Q: What What are the requisites for a valid exercise exercise of the p ower of eminent domain?  A: 1. There is a taking of private property 2. Taking is for public use 3. Payment of just compensation Q: What What are matte matters rs may be reviewed by the co urts ins ofar as expropriation is concerned?  A: 1. The adequacy of the compensation 2. The necessity of the taking

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3.

The “public use” character of the taking, except when Congress itself has de determined termined  the “public use” character of the taking. (Municipality of Meycauayan v. IAC, G.R. No. 72126, 1988) 1988)  

Q: What are the essential requisites before an LGU can exercise the power of eminent domain?  A: 1. An ordinance ordinance is e enacted nacted by the the local legislative council authorizing the the local chief chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain domain is exercised for for public use, purpose purpose or welfare welfare,, or for th the e benefit of tthe he poor and the landless. 3. There is payment payment of Just compensation, as required under Section 9, Article III of the Const Constitution, itution, and other pertinent laws. 4. A valid and definite offer offer has been previously made to the owner of the property property sought to be expropriated, but said offer was not accepted. (Spouses Yusay vs. Court of Appeals, G.R. No. 156684, 2011). Q: What What are the e elements lements o f taking ?  A: 1. Utilization of the property must be in such a way way as to oust the owner and deprive him of the Ben Beneficial eficial enjoyment of his property; 2. The expropriator enters the property; 3. Entry is made under w warrant arrant or color of legal authority; 4. Property is devoted devoted to public use; use; and and 5. The entrance must be permanent (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No. 171496, 2014) The landmark case of Republic v. Vda. De Castellvi  Castellvi  discusses the requisites of taking. First First,,  The expropriator must enter a private property; Second Second,, the entrance into private property must be for more than a momentary period; Third Third,,  the entry into the property should be under warrant or color of legal authority; Fourth Fourth,,  the property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and Fifth Fifth,, the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. (National Transmission Corp. v. Oroville Development Corp., G.R. No. 223366, 2017)  2017)   Q: Can Can the State State prohibit p rivate establishments establishments fr om collectin g parking fees from p ersons who use their parking parking facilities?  A:  A regulation that deprives any person of the profitable p rofitable use of his property constitutes a taking an and d entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor. (OSG v. Ayala, G.R. No. 177056, 2009)  2009)   Q: What What are the requisites f or authori zing immediate entry?  A: LGU: On the part of LGUs, expropriation is also governed by Sec. 19, LGC. 1. The filing filing of a complaint for expropriation expropriation suff sufficient icient in form and substance; and 2. The deposit of of the amount equivalent to 15% of the the fair market value of the property property to be expropriated expropriated based on its current tax declaration. (Iloilo v. Legaspi, G.R. No. 154614, 2004).  2004).  

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National Government: Pursuant to Section 2 of Rule 67 of the 1997 Revised Rules of Civil Procedure, 1. The filing of of a complaint for expropriation sufficient sufficient in form and substance; and 2. The making of of a deposit equivalent to the assessed value of the property subject to expropriation. expropriation. Upon compliance with the requirements the issuance of the writ of possession possess ion becomes “ministerial. (Biglang-awa (Biglang-aw a v. Bacalla, G.R. Nos. 139927 13 9927 and 139936, 2000) 2000)   Q: What What is just com pensation?  A: Just compensation has been defined as the "fair and full equivalent of the loss". The equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. The constitutional co nstitutional limitation of "just compensation" is considered to be a sum equivalent to the market value of the property, broadly defined as the price fixed by the seller in open market in the usual and ordinary course of legal action and competition; or the fair value of the property; as between one who receives and one who desires to sell it, fixed at the time of the actual taking by the government. (NPC v Sps. Asoque, G.R. No. 172507, 2016) Just compensation does not only refer to the full and fair equivalent of the property taken; it also means, equally if not more than anything, payment in full without delay. (Land Bank of the Philippines v. Gallego, G.R. No. 173226, 2013)  2013)   To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case. (Republic v. BPI, G.R. No. 203039, 2013) (B.H. Berkenkotter & Co. v. Court of Appeals, G.R. No. 89980, 1992) Q: Who are entitled to just compensation?  A: 1. Owner of the property 2. All owning, occupying occupying or claiming to the property who have lawful interest interest in the property property to be condemned (e.g. mortgagee, lessee, vendee under an executory contract). (Vda. De Ouano v. Republic, G.R. No. 168770, 2011)  2011)   Q: What What should be the basis of the value of just c ompensation?  A: General Rule: The value must be that as of the time of the FILING OF THE COMPLAINT for expropriation. Exceptions: 1. When the filing of the case comes LATER than the time of taking and meanwhile the va value lue of the property has INCREASED because of the use to which the expropriator has put it, the value is that of the time of the earlier TAKING. 2. Where this Court fixed the value of the property as of the date it was taken and not the date of the commencement of the expropriation proceedings. (NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007). Exception To The Exception: If the value INCREASED INDEPENDENTLY of what the expropriator did, then the value is that of the FILING of the case case.. (NPC v. Lucman Ibrahim, G.R. No. 168732, 2007).  2007).  

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Q: Who Who determines the amount amount o f just com pensation?  A: The determination of just compensation is a judicial function which cannot be curtailed or limited by legislation, much less by an administrative rule. The executive department or legislature may make initial determinations but when a party claims a violation of the guarantee on the exercise of the power of eminent domain, no statute, decree, or executive order can mandate that its own determination shall prevail over the court’s findings. (Landbank of the Philippines v Manzano, GR 188243, 2018) Q: Which court has the jurisdiction over petitions for the determination of just compensation in agrarian agraria n reform cases? cases?  A: R.A. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988 specifically provides that the Special Agrarian Courts (which are the RTCs) shall have original and exclusive jurisdiction over all petitions for the determination of just compensation to landowners, and the prosecution of all criminal offenses under said Act. The DAR cannot be granted jurisdiction over cases of eminent domain. The valuation of property in eminent domain is essentially a judicial function which cannot be vested in administrative agencies. (Land Bank of the Philippines v. Spouses Umandap, G.R. No. 166298, 2010). Q: What What is public use and its principl es in eminent eminent domain or expropriation pr oceedings?  A: 1) There is no precise meaning of "public use" and the term is susceptible of myriad meanings depending on diverse situations. The limited meaning attached to "public use" is "use by the public" or " public employment, employment,"" that "a duty must devolve on the person or corporation holding property p roperty appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned." 2) The more generally accepted view sees "public use" as "public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, [which] contributes to the general general welfare and the prosperity of the whole community." In this  jurisdiction, "public use" is defined as "whatever "whatever is beneficially employed for the community."  community."  3) It is settled that the public nature of the prospective exercise of expropriation cannot depend on the "num erical count of those to be served or the smallness or largeness of the community to be benefited." The number of people is not determinative of whether or not it constitutes public use, provided the use is exercisable in common and is not limited to particular particular individuals. Thus, the first essential requirement for a valid exercise of eminent domain is for the expropriator to prove that the expropriation is for a public use. (Barangay Sindalan v. Court of Appeals, GR No. 150640, 2007)  2007)  4) Mode Modernly, rnly, there ha has s been a shift from th e lite literal ral to a broader interpretation interpretation o f "p ublic pur pose" or " public use" for which t he power of eminent eminent domain may be exercised. exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the the taking thereof could satisfy the constitutional requirement of "public use." Under the n new ew concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project. (Camarines Sur v. CA, GR No. 103125, 1993 citing Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 (1983); Sumulong v. Guerrero, 154 SCRA 461 (1987))  (1987))  

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Q: What are the additional requirements that the LGU must observe and comply with if the expropriation is pursuant to an urban land land reform and housing progr am?  A: LGUs are also mandated to follow the conditions and standards prescribed by RA 7279 (Urban Development and Housing Act of 1992), the law governing the expropriation of property for urban land reform and housing. Sections 9 and 10 of RA 7279 specifically provide as follows: Sec. 9. Priorities in the acquisition of Land — Lands for socialized housing shall be acquired in the following order : (a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or - controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet ye t been acquired; and (f) Privately-owned lands. Where Whe re on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. apply . The local government units shall give budgetary priority to on-site development of government lands. Sec. 10. Modes of Land Acquisition. — The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint ventur e agre agreement, ement, ne negotiated gotiated purchase, and expropriation:: Provided, however , That expropriation shall be resorted to only when other expropriation modes of acquisition have been exhausted : Provided further , That where expropriation is resorted to, parcels parcels of land owned by sm all property owners shall be exempted exempted for purpo ses of this Act: Act : Provided, finally, finally, that abandoned property, as herein defined, shall be r eve everted rted and escheated eschea ted to the State in a proceeding analogous to the pr ocedure laid down in Rule 91 of the Rules of Court. The Supreme Court has ruled that the LGU is mandated to follow the conditions and standards prescribed by RA 7279 (the Urban Development and Housing Act of 1992), the law governing the expropriation of property for urban land reform and housing. In Filstream vs. Court of Appeals, Appeals , the Court held that the abovequoted provisions are limitations to the exercise of the power of eminent domain, especially with respect to the order of priority in acquiring private lands and in resorting to expropriation proceedings as a means to acquire the same. Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only after the other modes of acquisition have been exhausted. Compliance with these conditions is mandatory because these are the only safeguards of oftentimes helpless owners of private property against violation of due process when their property is forcibly taken from them for public use. Otherwise, the complaint for expropriation must fail. (Estate of J.B.L. Reyes v. City of Manila, G.R. No. 132431, 2004)  2004)  

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Q: What What is t he system o f imm ediate payment un der R.A. 1075 10752? 2?    A: Whenever it is necessary to acquire real property for the right-of-way site or location for any national government infrastructure through expropriation, upon the filing of the complaint or at any time thereafter, and after due notice to the defendant, the implementing agency shall immediately deposit to the court in favor of the owner the amount equivalent to the sum of:  1. One hundred percent percent (100%) of the value value of the land based based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR) issued not more than three (3) years prior to the filing of the expropriation complaint subject to subparagraph (c) of this section; 2. The replacement replacement cost at at current market va value lue of the improvements and structures as determined by: a. The implementing agency; b. A government financial institution with adequate experience in property appraisal; and c. An independent property appraiser accredited by the BSP. 3. The current market value of crops and trees located within the property as determined determined by a government financial institution or an independent property appraiser. Q: What What happens if there is abandonment of intended use?  A: If the property ceases to be used for a public purpose, the property reverts to the owner in fee simple. (ATO vs. Gopuco, Jr. G.R. No. 158563, 2005). 2 005).   Q: Can Can recla reclassification ssification of land by a local government unit be done thro ugh a resolution?  A: No. Under the Section 2 of the Local Government Code, the enactment of an ordinance is required for land reclassification by an LGU (Republic Act No, 7160, Sec. 2).

f.

Search Search es and Seizures

Q: What What is the constitu tional prohibi tion against searches and seizures? seizures?  A: The right of the people to be secure in their persons, p ersons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause cau se to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (PHIL. CONST., Sec. 2, Art. III)  III)  Q: What What are the requisites f or searches and seizures with a valid warrant?  A: 1. The existence existence of probable cause is determined personally by the judge. 2. It must be issued upon a finding of probable cause. 3. The judge must examine under oath tthe he complainant and the witnesses witnesses he may produce. 4. The warrant warrant must particularly describe the place to be searched a and nd person or or things to be seized. 5. It must be in connection with one specific specific offense. offense. (PHIL. CONST., Sec. 2, Art. III)  III)  This (constitutional) provision requires that the court examine with care and diligence whether searches se arches and seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the requirements of this provision are reasonable. This warrant requires the existence of probable cause that can only be determined by a judge. The existence of probable cause must be established by the judge after asking searching questions and answers. Probable cause at this stage can only exist if there is an offense alleged to be committed. Also, the warrant frames the searches s earches done by the law enforcers. There must be a particular description of the place and the things to be searched. (Aparente y Vocalan v. People, G.R. No. 205695, 2017, J. Leonen, Leonen , citing People v. Cogaed, G.R. No. 20334, 2014, J. Leonen) Leonen ) 

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Q: When can there be warrantless searches?  A: There are instances when searches are reasonable r easonable even when warrantless. In the t he Rules of Court, searches incidental to lawful arrests are allowed even without a separate warrant. This court has taken into account the "uniqueness of circumstances involved including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured." The known jurisprudential instances of reasonable warrantless searches and seizures are: 1. Warrantless search incidental incidental to a lawful arrest; 2. Seizure of evidence in "plain view;" 3. Search of a moving vehicle. Highly regulated regulated by the government government,, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that th at the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and frisk; 7. Exigent and emergency circumstances. (Aparente y Vocalan v. People, G.R. No. 205695, 2017, J. Leonen,, citing People v. Cogaed, G.R. No. 20334, 2014, J. Leonen) Leonen Leonen )   ALSO:  AL SO:   8. Airport searches searches (holder and and luggage subject to to search for prohibited materials materials or substances as a condition for boarding; Sec. 9, RA 6235) 6235) 9.

Checkpoints (visual search - Valmonte v. De Villa, G.R. No. 83988, 1989). 1989 ).

Q: What is the Terry Search?  A: “Stop and Frisk” searches are also referred r eferred to as the “Terry” searches (from the US case Terry v. Ohio). Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. (People v. Cogaed, G.R. No. 200334, [July 30, 2014], J. Leonen citing Malacat v. CA, 347 Phil. 462, 1997)  1997)   NOTE:   Absent any suspicious circumstance, or reliance on only one suspicious circumstance, is not a NOTE:  genuine reason; hence, it will not result in a reasonable “stop and frisk” or “Terry” search. (People v. Cogaed, G.R. No. 200334, [July 30, 2014], J. Leonen citing dissent of J. Bersamin in Esquillo v. People, 2010)  Q: Must Must t he judge personally examine the complainant and the w itnesses in determining p robable cause for the issuance of a warrant of arrest?    A: No. The judge is not required to examine personally. He is only required to determine probable cause personally. He may satisfy himself by fiscal reports, if not, he may require submission of affidavit of witnesses. (Soliven v. Makasiar, G.R. No. 82585, 1988). Q. What What is th e requireme requirement nt for a John Doe wa warrant rrant to be valid?  A: It must contain a descriptio a descriptio personae (description of the person) such as to enable the officer to identify the accused. (People (People v. Veloso, G.R. No. L-23051, 1925).

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Q: Can the right against unreasonable search and seizure be invoked against acts of a private individual?  A: No. The protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No.81561, 1991). 1991) . Q: What What are the requisites of the plain v iew doctrine?  A: 1. There was a prior valid intrusion 2. The evidence was inadvertently discovered 3. The evidence is immediately apparent 4. Plain view is justified seizure without further search. (Miclat v. People, G.R. No. 176077, 2011).  2011).   Q: What What is the exclusionary rul e?  A:  A: Any  Any evidence obtained obtained in violation of the proscription against warrantless warrantless searches and seizure seizure shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. (People v. Marti, supra.)   Q: What What are the instanc es of a valid warrantl ess arrest?    A:  A: A  A peace officer or a private person may, without without a warrant, arrest arrest a person:  1. When, in his presence, presence, the person to be arrested has committed, committed, is actually committing, committing, or is attempting to commit an offense; 2. When an offense has just been committed and he has has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and 3. When the person person to be arrested is a prisoner prisoner who has has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (ROC, Rule 113, § 5)  5)   Q: What What is the rule on the iss uance of warrants of arrest or search warrants?  A: GENERAL RULE:  RULE: Only a judge may validly issue a warrant of arrest or a search warrant, upon fulfillment of Constitutional requirements. (Salazar v. Achacoso, G.R. No. 81510, 1990). EXCEPTION: Final order of deportation issued in accordance with law. (Domingo v. Sheer, G.R. No. 154745, 2004)  2004)  Q: Are search warrants, which allowed the seizure of over 100 items from offices suspected of conduc ting illegal toll byp ass operations, ge general neral warrants? warrants?  A: No, they are not general warrants if it is established that the items to be searched are connected to the crime involved.  A search warrant fulfills the requirement of particularity p articularity in the description of the things to be seized when the things described are limited to those that bear a direct relation to the offense for which the warrant is being issued. (Worldwide Web Corporation v. People, G.R. 161106, 2014).

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Q: May May the right to q uestion the irregularity of a warrantless arrest be subject to w aive aiverr or estoppel?  A: Yes. An accused is already estopped from assailing any irregularity of his arrest if he fails to raise this issue or to move for the quashal of the information against him on this ground before arraignment. Thus, any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction of the person of the accused must be made BEFORE he enters his plea; otherwise, the objection is deemed waived.. (People v. Velasco, G.R. No. 190318, 2013). waived Q: May May mandatory drug tests be validly conducted in sch ools and private offices?  A: Yes. The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicion-less arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well-being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit pu rsuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects." projects. "   The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. (SJS v. DDB and PDEA, GR No: 157870, 2008). Q: May May persons arrested for crimes be the subject of mandatory drug tests?  A: No. No . The operative concepts in the mandatory drug testing are "randomness" and "suspicion-less." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicion-less. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the p prosecutor's rosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to tthe he procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (SJS v. DDB and PDEA, supra).

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3. COMPOSITION AND POWERS OF THE GOVERNMENT ORGANS Q: What What is the compositio n of Congress, their term of office and term limit?  A: SENATOR

COMPOSITION   COMPOSITION

TERM OF OFFICE

HOUSE OF REPRESENT REPRESENTATIVES ATIVES

24 who are elected at large by Not more than 250 members, unless otherwise the qualified voters of the fixed by law, consisting of: Philippines. (PHIL. CONST., 1. District Representatives:  Representatives:   elected from art. VI, § 2.) legislative districts apportioned among the provinces, cities and the Metropolitan Manila area 2. Party-list Representatives: Representatives : shall constitute 20% of the total number of the members of the House of Representatives including those under the party-list. 6 years commencing at noon on the 30th day of June

3 years, commencing at noon on the 30th day of June next following their election

following election CONST., their art. VI, § 4.) (PHIL.

TERM LIMIT

No Senator shall serve for more than 2 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected (PHIL. CONST., art. VI, § 4.)

No member of the HOR shall serve for more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Q: What What is the composi tion of the Supre Supreme me Court?  A: 1 Chief Justice and 14 Associate Justices (PHIL. (PHIL. CONST., art. VIII, § 4(1). 4 (1).))

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Q: What What is the composition, qualifications, disq ualifications, a appointm ppointm ent and term, and jurisdi ction of the constitutional commissions?  A: CIVIL SERVICE COMMISSION COMPOSITION

1 Chairman, 2 Commissioners

QUALIFICATIONS

DISQUALIFICATIONS

COMMISSION COMMISS ION ON A UDIT

1 Chairman, 6 Commissioners

1 Chairman, 2 Commissioners

Natural-born citizens of the Philippines; 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public

NTCIM 1. Natural-born citizen; 2. At least 35 years old at the Time of appointment; 3. College degree holder; 4. Not a candidate candidate in any election Immediately preceding the appointment; and

1. Natural born citizen; 2. At least 35 years old at the time of appointment 3. CPAs with a att least 10 years auditing experience or members of the Bar with at least 10 years of experience in the practice of law; at no

administration; and 4. Must not have been candidates for any elective position in the election immediately preceding their appointment (PHIL. CONST., art. IX-B, § 1(1))

5. Majority, including the chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years (PHIL. CONST., art. IXC, § 1, ¶ 1).

time shall all members belong to the same profession, and 4. Not a candidate in any election immediately preceding appointment (PHIL. CONST. art. IX-D, § 1, ¶ 1)  1)  

1.

 

COMMISSION ON ELECTION

 

1. 2. 3. 4.

Shall not, during tenure, hold any other office or employment Shall not not engage engage in the practice practice of any profession profession  Shall not engage in the active management management or control of any business which in any way may be affected by the functions of his office   Shall not be financially interested, directly or indirectly in any contract with, or in any franchise or privilege granted by the Government or any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. (PHIL. CONST., Sec.2, Art. IX).  

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 APPOINTMENT AND  Appointed by the  Appointed by the by the  Appointed President with the President with the consent President with the consent TERM consent of the of the commission of of the Commission on  Appointment, for a term of Commission of  Appointments. The 7 for a term of of years, without  Appointments for term is 7 years, reappointment. years, without reappointment.   (PHIL. 7 without reappointment. The prohibition of reappointment applies even if the Commissioner has served for less than 7 years. (BERNAS) (BERNAS)    Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (PHIL. CONST., art. IX-B, § 1, ¶ 2)

CONST. art. IX-C, § 1, ¶ 2)

reappointment.

to any If the appointment was ad  Appointment interim, a subsequent vacancy shall only be for renewal of the the unexpired portion of term of the appointment does not the violate the prohibition on predecessor. reappointment because no previous appointment was In no case shall any confirmed by the member be appointed or Commission on designated in a temporary  Appointment. Further, the or acting capacity. (PHIL. (PHIL. total term of both CONST. CONST. art.  art. IX-D, IX-D, § 1, ¶ 2) 2)   appointments must limit. not exceed the 7-year (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

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JURISDICTION

 All branches, EXCLUSIVE ORIGINAL subdivisions,  jurisdiction over all instrumentalities, contests relating to the agencies of the elections, returns, and government, qualifications of all elective including REGIONAL, PROVINCIAL

COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or

government owned and controlled corporations with original charters.   “With Original Charter” means that the GOCC was created by special law or by Congress   If incorporated under the

unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agency’s auditor with respect to disallowing certain disbursements of public funds. In

•

•

Corporation Code, it does not fall within the Civil Service and is not subject to the CSC  jurisdiction   If previously governmentcontrolled, but is later privatized, it ceases to fall under CSC   Jurisdiction is determined as of the time of filing the complaint.

•

•

and CITY officials Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG.. DILG   APPELLATE  jurisdiction over all contests involving: ELECTIVE o  MUNICIPAL •

officials decided by trial courts of general  jurisdiction ELECTIVE o  BARANGAY officials decided by trial courts of limited  jurisdiction   A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate  jurisdiction of the COMELEC. The Court recognizes the COMELEC’s appellate jurisdiction over petitions for certiorari against all acts or omissions of courts in election cases (Bulilis v. Nuez, G.R. No.

•

195953,

The Law Pertaining To The State And Its Relationship With Its

Aug.

9,

consonance its general audit withpower, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA’s vital constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, April 23, 2010). COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such

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2011).   2011).    The COMELEC HAS  jurisdiction over intr intraaparty disputes. The ascertainment of the identity of a political

as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control. COA has the

party and its legitimate officers is a matter that is well within its authority. The COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of an election. Its powers include the ascertainment of

authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011).

•

 

•

 

•

The Boy Scout of the

the identity of the Philippines (“BSP”) isand a political party and its government-owned corporation legitimate officers controlled responsible for its under the jurisdiction of acts. The COA. The BSP Charter COMELEC’s power created the BSP as a to register political “public corporation” (Boy parties necessarily Scouts of the Philippines v. involves the COA, G.R. No. 177131, determination of the 2011)  persons who must act on its behalf. The Manila Economic and (Matias v. Cultural Office (“MECO”) is COMELEC, G.R. No. subject to audit by the COA. The MECO is sui 188920, 2010).  2010).   To resolve the issue, generis (Funa v. Manila the COMELEC need Economic and Cultural G.R. 193462, only refer to the Party Office, Constitution. It need 2014)  not go as far as to resolve the root of the Water districts are within conflict between the the coverage of the COA. parties. It need only  A water district is a GOCC resolve issues as with a special charter since may be necessary in it is created pursuant to a the exercise of its special law. (Feliciano v. enforcement powers. Commission on Audit, G.R. 147402, 2004) 

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a. Senate Electoral Trib un al (SE (SET)/H T)/Hou ou se of Representati Representati ves E Electo lecto ral Tribun al ((HR HRET) ET) Q: What What is the composi tion of the composi tion o f the SET and HRET HRET? ?  A:  Nine (9) members 1. Three (3) Supreme Court Justices to be designated by the Chief Justice. The senior Justice in the Electoral Tribunal shall be its Chairman. 2. Six (6) Members of the Senate or House, as the case may be. They shall be chosen on the basis of proportional representation from the political parties and party-list organizations. o rganizations. The presence of the three Justices, as against six members of [each House], was intended as an additional guarantee to ensure impartiality in the judgment of cases before it. As such, there should always be one member of the Tribunal who is a Justice. If all three Justice-members inhibit themselves in a case, the Supreme Court will designate another Justice to chair the Electoral Tribunal. (Reyes ( Reyes v. HRET, G.R. No. 221103, 2018) 2018) LEONEN: An Electoral Tribunal is a quasi-judicial body. Therefore, the degree of proof required is only LEONEN: substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (David ( David v. SET, SET, G.R. No. 221538, 2016) 2016) Membership in the HRET may not be terminated except for a just cause, such as the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, pa rty, or removal for other valid cause.  A member member may not be expel expelled led by the the HOR for ‘party disloyalty’ short of proof that he has formally affiliated with another political group. (Bondoc v. Pineda, G.R. No. 97710, 1991)  1991)   Q: What What is t he juri sdic tion of th e SET/H SET/HRE RET? T?  A: Each Electoral Tribunal shall be the sole jud ge of all contests r elating to th e (ERQ (ERQ)) Election, Returns and Qualifications of their respective members. This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. “Qualifications” are “Qualifications” are not  not limited to the qualifications prescribed by the Constitution for a Member of Congress under Art. VI, Sec. 6. (Guerrero (Guerrero v. COMELEC, G.R. No. 137004, 2000) 2000 ) The COMELEC’s jurisdiction over election contests relating to election, returns, and qualificat ions ends, and the HRET's own jurisdiction begins once a winning candidate is: 1. proclaimed 2. taken his oath, and 3. assumed office as a Member of the House of Representatives. ( Aggabao  Aggabao v. COMELEC, COMELEC, G.R. N No. o. 163756, 2005) 2005) Thus, in an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. (Guerrero (Guerrero v. COMELEC, G.R. No. 137004, 2000) 2000 )

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Once COMELEC loses its jurisdiction, the proper remedy is to file a petition for quo warranto before the HRET and not a petition for certiorari before the Supreme Court. (Señeres v. COMELEC, G.R. No. 178678, 2009) 2009) NOTE: The Constitution NOTE: Constitution provides that a person assumes office “at noon on the 30th day of June”. The Oath of Office the petitioner presented is not valid. As far as the th e court is concerned, she took her oath on 5th of June which is not the one prescribe by the Constitution. Therefore, the COMELEC still has jurisdiction. Before there is a valid taking of the oath, it must be made: 1. before the Speaker of the House of Representatives, and 2. in open session. (Reyes ( Reyes v. COMELEC, G.R. No. 207264, 2013) 2013 ) Q: What is a SET or HRET Election Election Contest?  A: Electi Elec ti on Con tes t is where a defeated candidate receiving the second highest number of votes challenges the qualifications of a winning candidate and claims cl aims for himself the seat of a proclaimed winner. In the absence of an election contest, the Electoral Tribunal is without jurisdiction. However, each House can expel its own members or even defer their oath taking until their qualifications are determined. This may be exercised even without an election contest. The power of the HRET to determine the citizenship of a winning candidate does not include looking at the grant of citizenship to the candidate’s ascendant. That would be a prohibited collateral attack (Vilando ( Vilando v. HRET, G.R. Nos. 192147 & 192149, 2011). 2011 ).  An Electoral Tribunal may annul election results if in its determination, fraud, terrorism or other electoral irregularities existed to warrant the annulment. Because in doing so, it is merely exercising its constitutional duty to ascertain who among the candidates received the majority of the valid votes v otes cast. ( Abayon  Abayon v. HRET, G.R. No. 222236, 2016) 2016 )

b. Commission on Appointments Appointments Q: What What is the Commissi Commissi on on Appoi ntments?  A: The Commission on Appointments (CA) acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the CA is needed. (Bernas ( Bernas)) Q: What What is the composi tion of the Commissio Commissio n on Appointments?  A:   1. Senate President as ex-officio chairman 2. 12 Senators 3. 12 Members of the House of Representatives Elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. (PHIL. CONST., Sec. 18, Art. VI)  VI)   The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. (PHIL. CONST., .,  Sec. 19, Art. VI)  VI)  

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NOTE: 1. The Constitution does not require that the “political parties” be registered before the COMELEC. ((Daza Daza v. Singson, G.R. No. 86344, 1989) 2. The minimum required number of elected senators belonging to the same political party in order for the Guingona party to qualify for a seat in the CA is at least two (2) elected senators for every seat in the CA. ((Guingona v. Gonzales, G.R. No. 106971, 1993). 1993 ). 3. The Constitution does not require that the full complement of 12 senators s enators be elected to the membership in the CA before it can discharge its functions and that it is not mandatory to elect 12 senators to the CA (Guingona vs. Gonzales, G.R. No. 106791, 1993). 1993). 4. The two Houses have primary jurisdiction on who should sit in the CA. This includes determination of party affiliation and number of party members for purpose of determining proportional representation (Drilon ( Drilon v. De Venecia, G.R. No. 180055, 2009). 2009). Q: What What is the jurisdic tion of the Commissio Commissio n on Appointments ?  A: Juri Ju ri sdic sd ic ti on (PHIL. CONST., .,  art. VII, § 16.) The Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (E-MA²-C) (E-MA²-C) 1. Heads of the Executive Departments Exception Exception:: Appointment of Vice President as a member of the Cabinet needs no confirmation (PHIL. CONST., .,  art. VII, § 15.) 2.  Ambassadors,  A mbassadors, 3. Other public Ministers or consuls 4. Officers of the A the AFP FP from the rank of Colonel or Naval Captain Ca ptain and above; and 5. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members) EXAMPLES:: Chairmen and commissioners of the CSC, COMELEC, and COA; regular members of the EXAMPLES Judicial Bar Council (JBC) NOTE: Congress cannot by law prescribe that the appointment of a person to an office created by such law shall be subject to confirmation by the CA. CA. 

c. Judi cial and Bar Council Q: What What is the compositio n of the Judici al and Bar Bar Council?  A: 1. Chief Justice, as ex-officio ex-officio chairman  chairman 2. Secretary of Justice, as ex-officio ex-officio member  member 3. Representative of Congress, as ex-officio ex-officio member  member 4. Representative of the Integrated Bar (4 (4 years) years) 5. A professor of law (3 (3 years) years) 6. A retired member of the Supreme Court (2 ( 2 years) years) 7. Private sector representative (1 ( 1 year ) (PHIL. CONST., .,  art. VIII, § 8.)

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Regular Members Members o f the JBC The last four in the enumeration above are the regular members of the JBC. The President, with the consent of the Commission on Appointments, appoints regular members who serve for 4 years, in staggered terms. (PHIL. CONST., .,  art. VIII, § 8(2).) 8(2).) Q: Can Can Congress h ave 2 me members mbers as representatives in the J udicial and Bar Counci l?  A: No. The JBC is composed of 7 members coming from different sectors. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that the Constitution is explicit that we have only “a representative”. Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. The lone l one representative of Congress is entitled to one full vote. This effectively disallows the scheme of splitting the said vote into half between two representatives of Congress. (Chavez ( Chavez v. JBC, G.R. No. 202242, 2013) 2013) Thus, any inclusion of another member, whether with one whole vote or 1/2 of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. ((Id. Id.)) Q: C Can an the Judicial and Bar Council proceed eve even n witho ut a Chief Justice as ex-officio ch air?  A: Yes. The JBC can still perform its mandated task of submitting the list of nominees to the President despite a vacancy in the position of Chief Justice or the ex-officio Chairman a result, for of impeachment). In such case, the most Senior Justice of this Court who is not (as an applicant for example, the position of Chief Justice should participate in the deliberations for the t he selection of nominees for the said vacant p post ost and preside over the proceedings. (Dulay ( Dulay v. JBC, G.R. No. 202143, 2012) 2012) Q: What What are the function s of the Judic ial and Bar Council? Council?  A: Fun Funct ct io ns of Th e JBC JB C (PHIL. CONST., .,  art. VIII, § 8(5).) 8(5). ) Primary Function: Function : Recommend appointees to the Judiciary. Secondary Secondary Function: Function : It may also exercise such other functions f unctions as the SC may assign to it. Incidental Functions Functions The functions of searching, screening, and selecting are necessary and incidental to the JBC's principal function of choosing and recommending nominees for vacancies in the judiciary for appointment by the President. In carrying out its main function, the JBC has the authority to set the standards/criteria in choosing its nominees for every vacancy in the judiciary, subject only to the minimum qualifications required by the Constitution and law for every position. (Villanueva v. JBC, G.R. No. 211833, 2015) 2015 ) Q: Can Can the Judicial and Bar Council c luster the nomi nees nees submi tted to the President?  A: No. The clustering of nominees (for the six vacancies in the Sandiganbayan) by the JBC impaired the President's power to appoint members of the Judiciary and to determine the seniority of the newly-appointed Sandiganbayan Associate Justices. The clustering by the JBC of nominees for simultaneous or closely successive vacancies in collegiate courts can actually be a device to favor or prejudice a particular nominee.  A favored nominee can be included in a cluster with no other strong contender to ensure his/her appointment; or conversely, a nominee can be placed in a cluster with many strong contenders to minimize his/her chances of appointment. ( Aguinaldo  Aguinaldo v. Aquino, Aquino, G.R. No. 224302, 2016 2016)) 

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The ruling of the Court in this case shall similarly apply to the situation wherein there are closely successive vacancies in a collegiate court, to which the President shall make appointments on the same occasion, regardless of whether the JBC carried out combined or separate application process/es for the vacancies. The President is not bound by the clustering of nominees by the JBC and may consider as one the separate shortlists of nominees concurrently submitted by the JBC. ( Aguinaldo  Aguinaldo v. Aquino, Aquino, G.R. No. 224302, 2016) 2016) 

d. Commission on Human Rights Q: What What is the compositio n of the Commission o n Human R Rights? ights?  A: The Commission is composed of a Chairman and four (4) members who must be natural born citizens of the Philippines and a majority of whom must be members of the Bar . Bar . The term of office, other qualifications, and disabilities shall be provided for by law. (PHIL CONST., art. XIII, §17[2]) NOTE: The appointment of the CHR members is not subject to CA confirmation; and the CHR is not of the NOTE: same level as the COMELEC, CSC, or COA.  COA.  Q: What What are the powers of th e C Commissio ommissio n on Human R Rights? ights? 2  A: (IAC-PE RM-IRA) RM-IRA)   1. Investigate all forms of human rights violations involving civil or political rights and recommend. 2.  Adopt  A dopt operational guidelines and rules of procedure. 3. 4.

Cite for Contempt for violations of its rules, in accordance with the Rules of Court. Provide appropriate legal measures for the protection of the human rights rig hts of all persons, within the Philippines, as well as Filipinos residing abroad, ab road, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection.

5.

Exercise visitorial powers over jails, prisons and other ot her detention facilities.

6.

Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights.

7.

Recommend to congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families. famili es.

8.

Monitor compliance by the government with international treaty obligations on human rights.

9.

Grant Immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation.

10. Request assistance from any department, bureau, office, or agency in the performance of its functions. 11.  Appoint  A ppoint its officers and employers in accordance with law. law . (PHIL. CONST., .,  Sec. 11, Art. XIII)  XIII)  NOTE:   Violations may be committed committed by by public off officers icers or by civilians or rebels. •

 

CHR cannot investigate violations of social rights.

 

CHR has NO adjudicatory powers over cases involving involving human rights violations.

 

They cannot investigate cases where no rights are violated. e.g., There is no right to occupy government land (squat). Therefore, eviction therefrom is NOT a human rights violation.

 

The CHR can initiate court proceedings on behalf of victims of human righ rights ts v violations. iolations.

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•

•

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The CHR can recomme recommend nd the prosecution of human rights violators, violators, but it cannot itself prosecute prosecute these cases.

 

The CHR cannot issue re restraining straining orders or injunctions against alleged human rights violators. Th These ese must be obtained from the regular courts.

•

•

REMEMBER: In Cariño v. Commission on Human Rights, Rights, the SC ruled that the CHR cannot try and resolve on the merits (adjudicate) as it only has the power to investigate under the 1987 Constitution.

e. Office of the Ombudsman Q: What What is the compositio n of the Office of the O Ombuds mbuds man?  A: 1. Ombudsman/Tanodbayan; 2. Overall Deputy Deputy (at least one D Deputy eputy each for for Luzon, Visayas and Mindanao); and 3. Deputy for military establishment may be appointed appointed.. (PHIL. CONST., .,  Sec. 5, Art. XI)  XI)  Q: What What are the qualifications of the Ombudsm an and Deputies? Deputies?  A: 1. Natural born citizen of the Philippines 2. At least 40 y years ears old at time of appointment 3. Recognized probity and independence; 4. Member of the Philippine bar 5. Must not have been candidate for any elective off office ice in the immediat immediately ely preceding election (either regular or special) 6. For Ombudsman: Ombudsman: In addition to the the above qualifications, he/she must have been for 10 years or more: a judge OR engaged in the practice of law in the Philippines. Philippines. (PHIL. CONST., .,  Sec. 5, Art. XI)   Q: What What are the pow ers of the Ombudsman?  A: The Office of the Ombudsman shall have the following powers, functions, and duties:  duties:  (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears ap pears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

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(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties Constitution)   as may be provided by law. l aw. (Sec. 13, Art. XI, 1987 Constitution)  Q: Is Is the Ombudsman limited to prosecuting cases cognizable by the Sandiganbayan? Sandiganbayan?  A: No. The Ombudsman is clothed with authority authority to conduct pr preliminary eliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular reg ular courts as well. xxx The power to investigate and to prosecute granted grant ed by law to the Ombudsm an is plenary and unqu alified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, impro per or inefficient. The la law w does not m ake a distinc tion between cases cognizable by the Sandiganbayan Sandiganbayan and tho se cognizable by r egular courts. It has been held that the clause "any illegal illeg al act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. (Uy (Uy v. Sandiganbayan, GR No. 105965-70, 2001) 2001) NOTE:  This modified the 1999 ruling of the same case that initially said that the Ombudsman only has NOTE: This prosecutorial powers only in cases cognizable by the Sandiganbayan and not before the RTC. Thus, the 2001 ruling has confirmed the prosecutorial power of the Ombudsman in both Sandiganbayan and RTC. Q: Is the Ombudsman’s power of investigation exclusive?    A: No. This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials offici als is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials.” (Biraogo v. PTC, GR No. 192935, 2010 citing Ombudsman v. Galicia, GR No. 167711, 2008) 2008 ) Q: Is the Deputy Deputy Ombudsm an an impeachable official like the Ombudsm an?  A: No. The Deputy Ombudsman is Not an Impeachable Official (Hence, Subject to the Administrative Investigation of the Ombudsman).  Ombudsman).  As As enumerated in Sec. 2 of Article XI of the 1987 Constitution, only the following are impeachable officers: the President, the Vice President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. Thus: 1) List of impeachable officials is exclusive; 2) Deputy Ombudsman not part of the list; 3) Ruling in Cuenco v. Fernan (that Deputy Ombudsman is subject to impeachment) is an obiter; 4) Ombudsman can investigate the Deputy Ombudsman; 5) Removal, resignation, permanent disability, or retirement is not a bar to criminal prosecution in the courts. (Office ( Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 2005) 2005)

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4. JUDICIAL REVIEW REVIEW Q:  A: 1. 2. 3. 4.

What are the requisites f or judi cial review? What There must be be a judicial case ripe ripe for adjudication; Raised by the proper party party –  – party  party must have locus standi  standi   Raised at the earliest opportunity Decision on the constitutional constitutional question must be determinative of the case itself; it is the the lis  lis mota.

Q: Can Can inferior courts exe exercise rcise judici al review? review?  A: Yes. Since the power of judicial review flows from judicial judici al power and since inferior courts are possessed of judicial power, it may fairly be inferred that the power of judicial review is not an exclusive power of the Supreme Court. (Bernas, Commentary, 2009 ed.).  ed.).   Q: Does Does the CT CTA A have to power to is sue writs of certiorari?  A: Yes. Section 1, Article VIII vests judicial power in the Supreme Court and in lower courts established by laws. Judicial power includes the determination whether there has been grave abuse of discretion on the part of the government. The CTA has the judici al power to determine whether the RTC gravely abused its discretion in issuing an interlocutory order in cases falling within its exclusive appellate jurisdiction (City of Manila v. Grecia-Cuerdo, G.R. No. 175723, 2014). 2014). Q: What is the “operative fact doctrine”?  doctrine”?    A: When the assailed legislature act or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. However, the actual existence of a statute prior to such s uch determination is an operative fact and may have consequences which cannot be erased by a new judicial declaration. Thus, for a period of time such statute, treaty, executive order or ordinance was in “actual existence.” It is considered as an operative fact. (CIR v. San Roque Power Corporation, G.R. No. 187485, 2013). Q: When When is the operative fact doctrine not applicable?  A: Operative fact doctrine cannot be invoked if it will constitute unjust enrichment. In the case of Planters v. Fertiphil, Fertiphil, the tax on fertilizers had already been collected and applied to a private corporation’s needs. This was by virtue of the law imposing the tax. If the operative fact doctrine would be applied in this case it would sanction the enrichment of the Planters Product at the expense of the Fertiphil. (Planters Products, Inc. v. FertiPhil Corporation, G.R. No. 166006, 2008). 2008 ). It should also not be applied if it will be iniquitous and would send a wrong signal that an act may be justified when based on an unconstitutional provision. Simply put, it will not be applied if it will result to injustice. (Phil. Coconut v. Republic, G.R. Nos 177857-58, 2012). Q: Can Can an administrative practice be the basis for applying the operative fact fact doc trine?  A: No. The doctrine of operative fact states that a judicial declaration of invalidity may not necessarily obliterate all the effects of a void act prior to the declaration. declarati on. For the operative fact doctrine to apply, there must be a law or an executive issuance invalidated by the court. Its effect, when relied upon by the public in good faith, may have to be recognized as valid. (CIR v. San Roque Power Corporation, G.R. No. 187485, 2013).

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Q: What are the exceptions to the rule that the Courts will not entertain “moot” questions?    A: 1. A grave violation of of the Constitution Constitution 2. The exceptional character of the situation and paramount public interest is involved 3. A need to formulate controlling principles principles to guide the benc bench, h, the bar and the public; and International Service for the 4. The fact that the case is capable of repetition yet evading review. ((International  Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia, G.R. Nos. 209271, 209276, 209301, & 209430, 2016). Q: What What is the Political Question Doctrine?  A: The "limitation on the power of judicial j udicial review to actual cases and controversies" carries the assurance that "the courts will not intrude into areas committed to the other other branches of government." Essentially, the foregoing limitation is a restatement of the political question doctrine which, under the classic formulation of Baker v. Carr , applies when there is found, among others, "a textually demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion." Cast against this light, respondents submit that the "[t]he political branches are in the best position not only to perform budget-related reforms but also to do them in response to the specific demands of their constituents" and, as such, "urge [the Court] not to impose a solution soluti on at this stage." In Estrada v. Desierto, the Desierto, the expanded concept of judicial power under the 1987 the  1987 Constitution and its effect on the political question doctrine was explained as follows: To a great degree, th the e 1987 Constitution has narrowed the reach of the political  political question question  doctrine doctrine  when it expanded the power of  judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of ,jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the   Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Cle Clearly, arly, the new new provi sion di d not just grant the Court power of doing nothing […]. […].   (Belgica v. Ochoa, G.R. Nos. 208566, 208493, 209251 & L-20768, 2013)  2013)   Q: Is the judiciary precluded from reviewing “political questions”?    A: No, the 2  clause of Sec. 1, Art. VIII (the power to determine whether or not there has been a grave abuse of discretion) effectively limits the “political question” are which, heretofore, was forbidden territory for the courts. The Courts may now determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. (Francisco v. House of Rep, G.R. No. 160261, 2003).   nd

Q: Is the determination of what constitutes “betrayal of public trust” or “other high crimes” a political question?    A: Yes. A determination of what constitutes an impeachable offense is a purely political question, which the Constitution has left to the sound discretion of the legislature. (Ma. Merceditas N. Gutierrez v. The HOR Committee Committe e on Justice, et al., G.R. No. 193459, 2 2011). 011).  

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Q: Examples Examples of political questions in jurispr udence.  A:   1. Interpretation of the meaning of “disorderly behavior” and the legislature’s power to suspend a member (there is no procedure for the imposition of the penalty of suspension nor did the 1935 Constitution define what “disorderly behavior is).  is).  The matter is left to the discretion discretion of the legislature (Osmeña, Jr. v. Pendatun, G.R. 17144, 1960).   2. disregarded Whether theits court intervene in a held casetowhere House of authority Representatives was( Arroyo to v. have owncould rule. The court was have the been without to intervene i ntervene  said Arroyo De Venecia, G.zr. No. 127255, August 14, 1997).   3. Recognition of diplomatic immunity (International ( International Catholic Migration Commission Commission v. Hon. Calleja, G.R. No. 85750, 1990).   Q: Examples Examples of cases in jurispru dence where there there was he held ld to be no political question involved.  A:   1. Apportionment of representative representative districts (because ther there e are constitutional rules governing apportionment) ( Avelino  Avelino v. Cuenco, G.R. No. L-2821, 1949) 1949)..   2. Suspension of the privilege of the writ writ of habeas corpus is not a political question because the Constitution sets limits to executive discretion on the matter ( Montenegro v. Castañeda, G.R. No. L4221, 1952).   3. Manner of forming forming the Commission on Appointments ((Guingona Guingona v. Gonzales, G.R. No. 106971, 1992).   4. Constitutionality of Pork Pork Barrel system (Belgica v. Ochoa G.R. No. 208566, 2013)  

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5. SUPERVISION OF COURTS Q: What What is the extent of t he power of administrative supervisi on of the Supreme Court? Court?    A:  Administrative supervision merely iinvolves nvolves overseeing the operations of agencies to ensure that they are managed effectively, efficiently and economically, but without interference with day-to-day activities. Thus, to effectively exercise its power of administrative supervision over all courts as prescribed by the Constitution, P.D. No. 828, as amended, created the Office of the Court Administrator. Nowhere in the functions of the several offices in the Office of the t he Court Administrator is it provided that the Supreme Court can assume jurisdiction over a case already pending with another court. ( Agcaoili ( Agcaoili v. Fariñas, G.R. No. 232395, 2018) 2018)   Administrative jurisdiction jurisdiction over a court employee belongs to the Supreme Supreme Court, regardless of whether whether the offense was committed before or after employment in the judiciary. ( Ampong ( Ampong v CSC, G.R. No. 167916, 1 67916, 2008))  2008 Q: What What are the supervisory pow ers of the supreme court?  A:   1. It has administrative supervision over supervision  over all inferior courts and personnel.  personnel.  (PHIL. CONST., art. VIII, § 6.) 6. ) 2. It has exclusive power to to discipline  discipline or dismiss judges/ dismiss  judges/ justices of inferior courts. (P ( PHIL. CONST., .,   art. VIII, § 11.) 11.) 3. 4. 5. 6.

The Court alone may initi may initi ate the Rules Rules of Court. (PHIL. CONST., .,  art. VIII, § 5(5).) 5(5).) .,  art. VIII, § 5(3).) 5(3). ) The Court alone may order may order temporary detail of j udges. (PHIL. CONST., The Court can can appoint  appoint all officials and employees of the Judiciary. (PHIL. CONST., .,  art. VIII, § 5(6).  5(6).   Order a change of venue or place of place of trial to avoid a miscarriage of justice (P ( PHIL. CONST., .,  art. VIII, § 5(4).)) 5(4).

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6. POWERS OF THE T HE SUPREME COURT Q: Can Can the court exercise judicial p ower when there is no applicable law?  A:  No. In a number of cases decided, the Supreme court ruled that the exercise of judicial power when there is no applicable law is not authorized. Q: What is the nature of the Supreme Court’s jurisdiction to determine the sufficiency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus b y the Pre President? sident?    A: It is sui generis and granted by Sec. 18, Art. VII of the Constitution which provides that in i n case of invasion or rebellion, when public safety requires it, the President may, for a period not exceeding 60 days suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. It does not stem from Sec. 1 or 5 of Art. VIII. (Lagman v. Medialdea, G.R. No. 231658, 2017)  2017)   Q: What is the scope of the Supreme Court’s power to review the declaration of Mar tial Mar tial Law or suspension of the privilege of the writ of habeas corpus?    A: It is limited to a determination of the sufficiency of the factual basis of basis  of such declaration or suspension. (Id.)   (Id.) Q: Differentiate Differentiate the judicial power to review the sufficiency of the factual basis for the declaration declaration of martial law law and the suspension of the privilege of writ of habeas corpus fro m the congressional power to revoke such declaration and suspension.  A: JUDICIAL POWER TO REVIEW REVIEW  

CONGRESSIONAL CONGRESSI ONAL POWER TO REVOKE  REVOKE 

Court can only refer to information available to the Congress may take into consideration: President prior to or at the time of the declaration   Data available to the P President resident prior to or at the time of the declaration and Court is not allowed to undertake an independent   Events supervening the declaration investigation beyond the pleadings •

•

Does not look into the absolute correctness of the Can probe further and deeper, can delve into factual basis accuracy of facts presented before it Passive power

Automatic

Initiated by filing of a petition “in an appropriate May be activated by Congress itself at any time after proceeding” by a citizen  citizen   the proclamation or suspension was made (Lagman v. Medialdea, G.R. No. 231658, 2017)  2017) 

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7. QUALIFICATIONS, DISQUALIFICATIONS, AND SELECTION OF THE PRESIDENT, SENATORS, MEMBERS OF THE HOR, JUSTICES AND JUDGES, THE OMBUDSMAN, AND CONSTITUTIONAL COMMISSIONERS a. Executiv e Departm Departm ent Q: What What are the qualifications of the Preside President nt and Vice-P Vice-President resident of th e Philippines?  A: PRESIDENT  1. 2. 3. 4. 5. 6. 7.

VICE-PRESIDENT  

Natural-born citizen of the Philippines  Registered voter   Able to read and write  At least 40 years old on the day of election  Resident of the Philippines for at least 10 years immediately preceding preceding the election  Term of of 6 years  Unless otherwise provided by law, term of of office commences at noon of June 30 next following the election 

Single term only; not eligible for any reelection (but can

Term limitation; 2 successive terms  

run if no longer incumbent president, like President Estrada in May 2002)   Any person who has succeeded as President, and served as much for more than 4 years shall NOT be qualified for election to the same office at any a ny time  Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service  

(PHIL. CONST., .,  art. VII, §§ 2-4) b. Se Senators nators and Members Members of the House House of Representatives Representatives Q: What are the qualifications for Senators and Members of the House of Representatives?  A: SENATOR 

REPRESENTATIVE  Natural-born citizen of the Philippines    Able to read and write write 

 At least 35 35 years years o old ld on the DAY OF THE THE ELECTION   At least 25 years old on the DAY OF THE ELECTION   Registered voter  

Registered voter in the district in which he shall be elected (except party-list representatives) 

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Resident of the Philippines for at least 2 years immediately preceding the election  

Resident of the said district for at least 1 year immediately preceding election (except party-list representative) 

Term of 6 years commencing at noon on June Ju ne 30,   next following their election  

Term of 3 years commencing at noon on June 30, next following their election 

Term limit: no more than 2 consecutive terms  

Term limit: no more than 3 consecutive terms  

(PHIL. CONST., .,  art. VI, § 3 & 6)   Q: What What are the disqu alifications for Senators Senators and Members of t he House of Representatives? Representatives?  A: DISQUALIFICATION 

WHEN APPLICABL APPLICABLE E 

Cannot hold any other office or employment in the Government During his term. If he does so, he or any subdivision, agency or instrumentality thereof, including forfeits his seat in Congress.   GOCCS or their subsidiaries.   Cannot be appointed   During the term for which he was to any office which was created or the emoluments thereof elected  increased  Cannot personally appear as counsel before any court of justice, During his term of office  electoral tribunal, quasi-judicial and administrative body.   Cannot be financially interested directly or indirectly in any During his term of office  contract, franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.   Cannot intervene in any matter before any office of the During his term of office  government when it is for his pecuniary benefit or where he may be called upon to act on account of his office.   (PHIL. CONST., .,  art. VI, § 13 & 14.)   Q: Is preventive suspension considered “interruption” of a term under Sec. 8, Art. X and Sec. 43(b) of R.A. 7160?  A: No, a preventive suspension cannot simply be considered consider ed an interruption because the suspended official continues to stay in office although barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official’s continuity continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists (Aldovino v. COMELEC, G.R. No. 184836, 2009).  2009).  

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Q: Can Can a Congressman be preventively suspended by the Sandiganbayan Sandiganbayan for v iolation of Anti-Gra Anti-Graft ft Law notwithstanding th e exclusi exclusi ve power of Congress Congress to disci pline its member?    A: Yes. The suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment that is imposed by the Senate or House House of Representatives upon an erring member. member. It is distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a preventive measure. Since Section 13 of the Anti-Graft and Corruption Practices Practices Act does not state that thehas public officer must be suspended only in the office he holding. is alleged(Santiago to have committed the acts which he been charged, it applies to any office which hewhere may be v. Sandiganbayan, G.R. No. 128055, 2001)  2001)   Q: Compare and contrast the disqualifications from holding incompatible offices in the Constitution:    A: (SENATE   CONGRESS (SENATE & HOR)  HOR) 

PRESIDENT'S OFFICIAL FAMILY  FAMILY  

 AFP    AFP  IN ACTIVE SERVICE   SERVICE

Sec. 13,  Art. VI

Sec. 13,  Art. VII

Sec. 5(4),  Art. XVI XVI

Basis   Basis

No other Gov’t, office or agency, employment GOCC in: in :  

its

subdivision, Private corp. / gov’t; no practice of Civilian position in instrumentality, profession; no business interest or government, transaction w/ gov't. GOCCs, or instrumentalities

During   During

Term

Financial Interest   Interest

Cannot be financially interested directly or indirectly in any contract, franchise, or special privilege granted by the Government, or any

They shall not be directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government

subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. (PHIL. CONST. art. VI, §14)  §14)  

or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. (PHIL. CONST., art. VII, §13)  §13)  

Tenure N/A

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c. Justic es and Judg es Q: What What are the qualification of j udges and justi ces?  A:   SUPREME COURT 

LOWER COLLEGIATE COURTS (CA, CTA, SANDIGANBAYAN) 

Natural-born citizen of the Philippines  

LOWER NON-COLLEGIATE COURTS  Citizen of the Philippines (may be naturalized) 

 At least 40 40 years old 

Possesses other qualifications prescribed by Congress  

 At least 15 years of experience as a  judge or in the practice of law in the Philippines 

Member of the Philippine Bar  

 A person of proven proven competence, integrity integrity,, probity, and independence  (PHIL. CONST., .,  art. VIII, § 7.) 7.) Q: What What is the term of office of members of the Supreme Court and judges of the lower courts ?    A: Members of the Supreme Court and judges judges of the lower courts hold office during good behavior until:   1. The age of 70 years old  2. They become become incapacitated incapacitated to discharge their duties (PHIL. CONST., .,  art. VIII, § 11.)   Q: What What happens if the Pre President sident is no t satisfied with the list subm itted by th e JBC?    A: He may ask for another list. But once the appointment is issued by the President and accepted by the nominee, it needs no further confirmation. (Bernas, The 1987 Constitution of the Republic of the Philippines:  A Commentary, Commentary, p. 1019)  Q: Can Can bot h a senator and c ongressman sit in t he JBC as representa representatives tives of Congress?    A: No. There is only one representative of congress entitled to one vote in the JBC. Congress chooses whether the JBC representative shall come from the Senate or the House or Representatives. (Chavez v. JBC, G.R. No. 202242, 2013). 2013) .  Q: Is Is the JBC required to hold hearings on the qualifications of n ominees?    A: No. The process by which an on objection is made based on Sec 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact finding because it does not aim to determine guilt or innocence akin to a criminal or administrative offense. Rather, it is to ascertain the fitness of an applicant appli cant vis-a-vis the requirements for the position. Even if proceedings before the JBC are sui generis, due process still applies (Jardaleza v. Chief Justice Sereno G.R. No. 213281, 2014)  

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Q: The JBC sorted Sandiganbayan Associate Justice nominees in 6 clusters. The President appointed 2 nominees belonging i n one clus ter. The The other nominees argued that the President could only ch oose 1 nominee from ea each ch of the sepa separate rate six short lists or clusters pro vided by the JBC. IIs s the clustering of nominees by JBC uncons titutional?    A: Yes. The JBC, in sorting the qualified nominees into six (6) clusters, one for every vacancy, could influence the appointment process beyond its constitutional mandate of recommending qualified nominees n ominees to the President. Clustering impinges upon the President’s power of appointment, as well as restricts the chances for appointment of the qualified nominees. (Aguinaldo v. Aquino, G.R. No. 224302, 2017).  

d. Ombudsman Q: What What are the qualifications and dis qualifications of the Ombudsm Ombudsm an and his d eputies?    A: Qualifications Qualifications   1. Natural-born citizens of the Philippines   2. At lease 40 years years old at at the time of their appointment  3. Is of recognized probity and independence  4. Member of the Philippine Bar   5. Must not not have been been candidates for for any elective elective office in the im immediately mediately preceding election   6. Must have been a judge or engaged in the practice practice of law for for ten year years s or more (for the O Ombudsman mbudsman only) (PHIL. CONST., art. XI, § 8.) 8.)  Disqualifications:   Disqualifications: 1. Cannot hold an any y other office or employment  2. Shall not engage in the practice of any profession or in the the active management or in the act active ive management or control of any business which, in any way, may be affected by the functions of his office  3. Shall not be financially interested, directly directly or indirectly, indirectly, in any cont contracts racts with, o orr in any franchise of privilege granted by the Government, any of its subdivision, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. (PHIL. CONST., art. XI, § 8 & art. IX A, § 2.) 

e. Constitu tional Commission ers Q: What What are the inhibitio ns/disqualifications?  A:   1. Shall not, during tenure, hold any other office or employment  2. Shall not not engage engage in the practice practice of any profession profession   3. Shall not engage engage in the active management management or control control of any business which which in any way may may be affected by the functions of his office   4. Shall not be financially financially interested, directly directly or indirectly in a any ny contract with, or in any franchise or privilege granted by the Government or any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. (PHIL. CONST., Sec.2, Art. IX).  Q: What is the “rotational scheme of appointments” and what are the 2 conditions for its workability?    A: The first appointees shall serve terms t erms of 7, 5 and 3 years, respectively. After the first commissioners are appointed, the rotational scheme is intended to prevent the possibility of one President appointing all the Commissioners. (Funa ( Funa v. The Chairman, G.R. No. 192791, 2012).  

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The 2 conditions for its workability are:   1. The terms of the First Chairman Chairman and Commissioners Commissioners should start on a common common date, irrespective of of variation of dates of their appointments and qualifications; and  2. Any vacancy vacancy due due to the death, death, resignation resignation or disability before the expiration of tthe he term should be filled only for the unexpired balance of the term. ((Funa Funa v. The Chairman, G.R. No. 192791, 2012). 2 012). 

Q: What What constituti onal offices does the rotational scheme of appointments apply?  A:   1. Civil Service Commission  2. Commission on Elections  3. Commission on Audit  4. Judicial and Bar Council (Id.) Q: Does Does the rotational scheme apply to the Office of t he Ombudsman? Ombudsman?  A: No. The Constitution is clear and explicit: (a) the the Ombudsman and the deputies shall serve the the term of seven years; (b) that the Ombudsman and the deputies d eputies shall not be reappointed; and (c) the Ombudsman and the deputies shall not run for any office in the election immediately succeeding their cessation from office. In the review of Sec. 8(3) of R.A. No. 6770, 6770, the Court noted that in case of deat death, h, resignation, removal, or permanent disability of the Ombudsman, the new Ombudsman shall be appointed for a full term. Undoubtedly, Sec. 8(3), R.A. No. 6770 is consistent consisten t with Sec. 11, Art. XI of the 1987 Constitution in so far as it provides that the Ombudsman and the deputies shall serve for a term of seven years.  years.  THUS:   Pertinent to Sec. 10, Art. Art. XI of the the 1987 Constitution, it is only as to the rank and salary that the Ombudsman and the deputies s hall be the same with the chairman and members, respectively, of the constitutional commissions. commissions .   Harmonizing Sec. 11, Art. Art. XI of the the 1987 Constitution with Sec. 8(3) of R.A. No. 677 6770, 0, in any vacancy for the position s of Ombudsman and the deputies, whethe whetherr as a result of the expiration of the term or dea death, th, resignation, removal, or permanent disability of the pr edecessor  edecessor ,, the successor shall always be appointed for a full term of seven years. years.     Unlike the constitutional commissions in Art. IX IX of the 1987 Const Constitution itution,, the seven-year seven-year term of office of the first appointees for Ombudsman and the deputies is n ot reckoned fr om 2 Fe February bruary 198 1987, 7, but shall be reckoned from their date of appointment . Accordingly, the present Ombudsman and •

•

•

deputies shall serve a full term of seven years from their date of appointment unless their term is cut short by death, resignation, removal, or permanent disability.   The Gaminde ruling ruling applies to the constitutional constitutional commissions and not tto o the Office of the Ombudsman. (Ifurung v. Carpio-Morales, G.R. No. 232131, 2018)  2018)  

•

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8. IMMUNITY OF THE PRESIDENT, PRIVILEGES OF SENATORS AND MEMBERS OF THE HOR a. Pre Presidential sidential Immunity Q: When When is the President President immune from s uit?  A: Dur ing in g t enure enu re:: For both official and unofficial acts;    Af ter ten ur e: Only for official acts ; Once out of office, even before the end of the six-year term, immunity for non-official acts is lost (Estrada ( Estrada v. Desierto, G.R. No. 146710, 2001). 2001).  Q: What What is covered by presidential immunity fr om sui t?    A: It extends to official acts of the president during tenure. Unlawful acts of public officials are not acts of State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. (Estrada v. Desierto, G.R. No. 146710-15, 2001).   Q: May May it be in vok ed by a Departm Departm ent Secretary?    A: No, even if the DECS Secretary is an alter ego of the President, the President’s immunity from suit cannot be invoked because the questioned acts are not the acts of the President but merely those of a Department Secretary. (Gloria (Gloria v. CA, G.R. No. 119903, 2000).  

b. Presidenti Presidenti al Privilege Q: What What are those cov ered by executive privilege?  A: 1. Military, diplomatic and other national security matters which in the interest interest of national security should not be divulged (Almonte divulged (Almonte vs. Vasquez, G.R. No. 95367, 1995; Chavez v. PCGG, G.R. No. 130716, 1998).   2. Information between between inter-government agencies agencies prior to the conclusion conclusion of treaties and executive executive agreements (Chavez v. PCGG, G.R. No. 130716, 1998);   3. Discussion in close-door Cabinet meetings (Chavez v. PCGG, G.R. No. 130716, 1998); 1998) ;   4. Matters affecting national security security and public order   (Chavez v. Public Estates Authority, G.R. No. 133250, 2002).  

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Q: What What are the priv ileges availabl e to the President’s Presi dent’s communications?   A: The presumptive presidential communications privilege and the deliberative process privilege. (Neri v. Senate, G.R. No. 180643, 2008). PRESIDENTIAL COMMUNICATIONS   COMMUNICATIONS

DELIBERATIVE PROCESS  PROCESS 

Basis   Basis

Separation of powers

Common law privilege

What   What

Pertains to communications, documents or other materials that reflect decision-making and deliberations that should remain confidential. It applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.

Includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated

Coverage   Coverage

Requisites   Requisites

Pre-deliberative, final and post- Deliberations; It applies to decisiondecisional matters making of executive officials (and Negation of this type of privilege is  judiciary) subject to more scrutiny. It applies to decision-making of the President.

1. It must involve a quintessential and non-delegable power of the President 2. Operational proximity 3. Important and compelling need to be kept confidential, not merely based on

1. Predecisional   –   –  it precedes, in temporal sequence, the decision to which it relates. 2. Deliberative Deliberative   –   –  reflects the give and take of the consultative process

general interest

such that disclosure would discourage candid discussion within the agency

Q: What are the 3 Requisites for a valid claim of Presidential Communications  Privilege?  A:   1. The protected protected communication communication must must relate relate to a quintessential and non-delegable presidential power ;  Examples: commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.   2. It must be authored, solicited solicited,, and received by a close advisor of the President President or the Pre President sident himself/herself. (Operational proximity test)  3. It may be overcome  overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by unavailability of the information elsewhere by an appropriate invest investigating igating authority. (Neri v. Senate, G.R. No.180643, 2008).  

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Q: Is there an exception to Executive Privilege?    A: Yes. Executive privilege cannot be used to conceal a crime or a possible wrongdoing. Thus, the specific need for evidence in a pending criminal trial t rial outweighs the President’s generalized interest in confidentiality (Neri v. Ermita, supra, citing US v. Nixon).   Q: Does Executive Privilege violate the people’s right to information?    A: No. Sec. 7, Art. III provides that the right is “subject to such limitations as may be provided by law” such as Code of Conduct, revelation of secrets by an officer under the RPC and corrupt practices of public officers. These are in addition to the larger concept of executive privilege, which recognizes the public’s interest in the confidentiality of certain information. (Neri v. Ermita, supra, citing US v. Nixon).   Q: Is Is there an exception to the pro hibition on the President’s President ’s official  official family from holdin g any other office or employment?    A: Yes. The prohibition must not be construed to apply to posts occupied by Executive officials without additional compensation in an ex-officio capacity, as provided by law and as required by the primary functions of said official’s office. These posts do not n ot comprise “any other office”. An example is the Secretary of Justice as a member of the JBC in an ex officio capacity. (Civil Liberties Union (CLU) v Executive Secretary, G.R. No. 83896, 1991)   NOTE:: Section 7, Article IX-B is meant to lay down the general rule NOTE r ule applicable to all elective el ective and appointive public officials and employees, while Section 13, Article VII is their meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, deputies and assistants. ( Funa v. (Funa Agra G.R. No. 191644, 2013)  

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9. STRUCTURE OF GOVERNMENT a. Powers of the President Q: During the campaign, President Duterte, who was then a candidate and later on became the elected ele cted President, President, publicl y announced that he would allow the burial of former President Marcos Marcos at the Libingan ng mga Bayani (LMNB). The Marcos Family entered into a 1992 agreement with the Government Gove rnment of the Republic Republic of the Philippi nes that the remains be interred in Bata Batac, c, Ilocos Norte. Does this agreement bind President Duterte?    A: No. The Presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation nor may its exercise be limited, much less withdrawn, by the legislature. This is why President Duterte is not bound by the alleged 1992  Agreement to have h ave the remains interred int erred in Batac, Ilocos Norte. (Ocampo v. Enriquez, G.R. No. 225973, 2016).   2016). Q: What are the Constitutional Limitations on the President’s appointing power?  power?    A:   1. The president may not appoint his/her spouse and relatives by consanguinity or affinity within the 4th  civil degree as members of the: a. Constitutional Commissions b. c. d. e.

Ombudsman Department Secretaries Undersecretaries Chairmen and heads of Bureaus and Offices f. GOCCs (PHIL. CONST., Sec. 13, Art. VII).  VII).   2. Appointments extended by an acting acting President shall remain effect effective ive unless revoked by the elected President within 90days from assumption of office. (PHIL.  CONST., Sec. 14, Art. VII).  VII).   3. Two (2) months months immediately before the next presidential presidential elections and up to the end end of his/her term, term, a President or Acting President shall not make appointments except except   temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (PHIL. CONST., Sec. 15, Art. VII).  VII).  

Q: Does Does the election ban a.k. a.k.a. a. midnight ban under Section 15, Article VII VII apply to appointments to the judiciary?  A:  No, the prohibition does not extend to appointments in the Judiciary. Had the framers intended to extend the prohibition to the appointment of Members of the Supreme Court, they could have explicitly done so. The prohibition is confined to appointments in the Executive Department by the President or Acting President (De Castro v. JBC, G.R. No. 191002, 2010). Neither 2010). Neither does it apply to local executive officials. (Quirog v. Aumentado, G.R. 163443, 2008).  As can be seen, Article VII is devoted to the the Executive Department, and, among others, it lists the powers powers vested by the the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.  Article VIII is dedicated to the Judicial Department Department and defines the duties and q qualifications ualifications of Members of the Supreme Court, among others. Section 4 (1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list

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of at least three nominees by the JBC; Section 4 (1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. v acancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court. (De Castro v. Judicial and Bar Council, G.R. Nos. 191002, 191032, 191057, 191149, 191342, 191420 & A.M. No. 10-2-5-SC, 10 -2-5-SC, 2010)  2010)  Q: What are the category/categories of officials whose appointments need confirmation by the Commission on Appointments?    A: The only officers whose appointments need confirmation are: 1. Head of executive departments, 2. Ambassadors 3. Other public ministers, 4. Consuls 5. Officers of the AFP from from rank of colonel or naval captain 6. Other officials officials whose app appointment ointment are vested vested in the President by the the Constitution. The Congress may may not expand this list. (Sarmiento ( Sarmiento v. Mison G.R. No. 79974, 1987). 1987 ). Q: Differentiate Differentiate Ad Interim from Appointments in an acting capacity.  capacity.    A:    AD-INTERIM  AD-INTERIM  

 ACTING CAPACITY  CAPACITY  Effective upon acceptance

Only during a recess of Congress

Anytime there is a vacancy

Submitted to the Commission of Appointments

Not submitted

Considered a permanent appointment.  A way of temporarily filling important offices but, if (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. abused, can be a way of circumventing the need for No. L-65439, 1985).   confirmation by the Commission on Appointments. May be terminated for any of 2 causes:   1. Disapproval of the appointment by the CA; 2. Adjournment by Congress without the CA acting on the appointment. (Appointeecandidate is bypassed)  bypassed)   (Pimentel v. Ermita, G.R. No. 164978, October 13, 2005).  2005).  

REMEDY OF THE PRESIDENT: Renew the Ad interim appointment. (Matibag v. Benipayo, G.R. No. 149036, 2002).  2002). 

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Temporary  – not Temporary   – not subject to confirmation by the CA. Such confirmation, if given erroneously, will not make the incumbent a permanent employee. (Valencia v. Peralta, G.R. No. L-20864, 1963).  1963).   Q: Does the assumption of office on the basis of the ad interim appointments issued by the President Preside nt amount to a temporary appo intment which is prohi bited by § 1 (2 (2), ), Art. IIX-C X-C? ?  A:  No. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. (Matibag v. Benipayo, G.R. No. 149036, 2002). Q: May the succeeding President revoke appointments to the Judiciary made by an Acting President?  A:  No, Sec. 14, Art. VII refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary because temporary or acting appointments can only undermine the judiciary due to their being revocable at will. Prior to their mandatory retirement or resignation, judges of the first or second level courts and the Justices of the third level courts may only be removed for cause, but the members of the Supreme Court may be removed only by impeachment. (De Castro v. JBC, G.R. No. 191002, 2010). Q: Is RA 6770, insofar as it confers to the President disciplinary authority over the Deputy Ombudsman, valid?  A:  No. The alter egos of the President and the officials of the Executive Department are subject to the disciplinary authority of the Ombudsman. The deputy Ombudsmen act as agents of the Ombudsman in the performance of their duties. Thus, subjecting the deputy Ombudsmen to the power to discipline a and nd removal by the President will seriously place at risk the independence of the Ombudsman. NOTE: The President has disciplinary authority insofar as the Special Prosecutor is concerned because he NOTE: is not within the Office of the Ombudsman (Gonzales III v. Office of the President, G.R. No. 196231, 2012). Q: What What is the doctrine of q ualified political agency?  A:   Save in matters on which the the Constitution or the circumstances require the P President resident to act personally, executive and administrative functions are exercised through executive departments headed by cabinet secretaries, whose acts are presumptively the acts of the President unless disapproved by the latter. There can be no question that the act of the secretary is the act of the President, unless repudiated by the latter. (Hontiveros-Baraquel (Hontiveros-Ba raquel vs. Toll Regulatory Board, 2015). Q: May the president appoint an individual as acting Solicitor General and acting Secretary of Justice in a concur rent capa capacity? city?  A:   No. The designation of Alberto Agra as acting Secretary of Justice concurrently with his position as Solicitor General is in violation of the constitutional prohibition under Article VII, Section 13. It is of no moment that the designation was in a temporary capacity. The Constitution makes no reference to the nature of the designation (Funa v. Agra, G.R. No. 191644, 2013). Q: What is the nature of the President’s power over local governments?  governments?    A:  The president’s power over local governments is only one of general supervision, and not one of control. (Pimentel v. Aguirre, G.R. No. 132988, 2000).

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Q: May the President merge administrative regions?    A:  Yes. To facilitate the exercise of power of general supervision of local government, the president may merge administrative regions and transfer the regional center to Koronadal City from Cotabato City (Republic v. Bayao, G.R. No. 179492, 2013). 2013 ). Q: Distinguish the President’s President’s authority to declare a state of rebellion and the authority to proclaim a state of national emergency.  A:  The authority to declare a state of rebellion emanates from the President’s power power as Chief Executive. In Sanlakas,, the President’s declaration of a state of rebellion was deemed harmless and without legal Sanlakas significance. In declaring a state of national emergency, (PP1017), the President did not only rely on Sec. 18, Art. VII but also on Sec. 17, Art XII of the Constitution. Calling for the exercise of awesome powers cannot be deemed harmless or without legal significance. (David v. Macapagal-Arroyo, G.R. No. 171396, 2006). Q: Is a presidential presidential pr oclamation of a state of eme emergency rgency su fficient to allow the President to take over any any public utility?  A:  No. Since it is an aspect of emergency powers in accordance with § 23 (2), Art. VI of the Constitution, there must be a law delegating such power to the President. (David v. Macagapal Arroyo, supra). Q: What are the safeguards in the exercise of Congress’ grant of authority to take over private corporations and institu tions under Sec. 17, 17, Art. X XII II? ?  A:   1. There must be war war or a declared national emergency emergency 2. Delegation is for a limited period only; only; 3. Delegation is subject to restrictions restrictions prescribed prescribed by Congress; 4. Emergency powers are exercised to carry out a declared national national emergency. Q. What is the President’s Ordinance Power? Power?    A: The President's Ordinance Power is the Executive's rule-making authority in implementing or executing constitutional or statutory powers. Indisputably, there are constitutional powers vested in the Executive that are self-executory. The President may issue "rules of a general or permanent character in implementation or execution" of such self-executory constitutional powers. The power to issue such rules is inherent in Executive power. Otherwise, the President cannot execute self-executory constitutional provisions without a grant of delegated power from the Legislature, a legal leg al and constitutional absurdity. Whether the rule-making power by the Executive is a delegated d elegated legislative power or an inherent in herent Executive power depends on the nature of the rule-making power involved. If the rule-making power is inherently a legislative power, such as the power to fix tariff t ariff rates, the rule-making power of the Executive is a delegated legislative power. In such event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the power. If the the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power. The most important im portant self-executory constitutional power of th the e President is i s the President's constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the President can execute the law without any delegation of power from the legislature. Otherwise, the President becomes a mere figurehead and not the sole Executive of the Government.

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Only if the law is incomplete, as when there are details to be filled in by the Executive under specified legislative standards before the law can be implemented, i mplemented, is the issuance of rules by the Executive anchored on the delegation of legislative power. Once the law is complete, that is, the Executive has issued the the rules filling in the details of the law, the Executive may still issue rules to execute the complete law based now on the Executive's inherent power to execute the law. (Abakada Guro Party List v. Purisima, G.R. No. 166715, 2008)  2008)  Q: May the President issue “decrees” in a state of rebellion?  rebellion?    A:  No, PP1107 is unconstitutional insofar as it grants the President the authority to promulgate “decrees” because legislative power is peculiarly within the province of Congress. (David v. Macapagal-Arroyo, supra). Q: May May the President President enforce obedience to all laws th rough the m ilitary?  A:  No, the President cannot call the military to enforce or implement certain laws such as customs laws, those governing family and property relations, laws on obligations and contracts, etc. She can only order the military, under PP1017, to enforce laws pertinent to its duty to suppress lawless violence. (David v. Macapagal-Arroyo, supra). Q: Is Is th e President President required to dispense his extraordinary powers (calling ou t, decla declaration ration of martial law, and and susp ension of the privilege of the writ of habeas habeas corpu s)  s)  SEQUENTIALLY?  A:  No. The President has absolute discretion to choose which of the extraordinary powers to exercise at a given time, provided that the conditions for the valid exercise of each power exists. (Lagman v. Medialdea, G.R. No. 231658, 2017) Q: Is the recommendation of th e defense defense secreta secretary ry n ecessary ecessary for the declara declaration tion o f martial law or suspension of the writ of habeas habeas corpus ?  A:  No. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. (Lagman v. Medialdea, 2017) Q: Differentiate the Commander-in -Chief  -Chief  powers of the Preside President. nt.  A:   SUSPENDING THE PRIVILEGE OF WRIT OUT   CALLING OUT Most benign and involves ordinary police action

OF HABEAS OF CORPUS CORPUS AND  AND DECLARATION MARTIAL MARTIAL LAW   LAW Involve curtailment and suppression of civil rights and individual freedom

President may invoke whenever it becomes necessary to President may only invoke when there is prevent or suppress lawless violence, invasion, or actual invasion, rebellion, and public safety rebellion. requires it President must act within permissible constitutional 1. Time limit of 60 days boundaries or in a manner not constituting grave abuse a buse of 2. Review and possible revocation by discretion. But generally, president has full discretion Congress 3. Review and possible nullification by the SC

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 Actual use to which President puts the armed forced no t   Subject to judicial review as to sufficiency for subject to judicial review the factual basis of such declaration. (Lagman v. Medialdea, G.R. No. 231658, 2017) Q: What are the limitations on the exercise of the President’s pardoning power?    A:   1. Cannot extend to cases of of impeachment. (PHIL. CONST., Sec. 19, Art. VII).  VII).  2. For violation of election laws, must must have favorable favorable recommendation recommendation by the COMELEC. COMELEC. (PHIL. CONST., Sec. 5, Art. IX-C).  IX-C).   3. Granted only after conviction by final judgment. (PHIL. CONST., Sec. 19, Art. VII).  VII).   4. Cannot extend to cases of legislative contempt, or c civil ivil contempt. 5. Does not absolve civil liability. (People v. Nacional, G.R. No. 11294, Sep. 7, 7 , 1995). 1995).   6. Does not restore public offices forfeited. (Monsanto v. Factoran, G.R. No. 78239, 1989). 1989).   Q: May May the President grant executive clemency in adm inistrative cases? Yes, but only to administrative cases in the Executive branch, not in the Judicial or Legislative branches of government. (Llamas v. Orbos, G.R. No. 99031, 1991). Q: Can Can the Executive Secreta Secretary ry grant a petition for executive cleme clemency ncy filed by a judge who was meted a pe penalty nalty of suspensio n from office?  A:  No. The power of executive clemency cannot be delegated for it was not signed by the President himself but by the Executive Secretary. Also, it cannot extend to administrative cases in the Judiciary because it will violate the principle of separation of powers and impair the power of the SC under § 6 Art. VIII. Q: Distinguish treaties treaties fro m executive agreements. agreements.  A:   TREATY  TREATY 

EXECUTIVE AGREEMENT  AGREEMENT 

Involve political issues, national policy

Involve details carrying out national policy

Int'l. agreements of a permanent kind

More or less temporary in character

Requires senate concurrence

Does not require senate concurrence

(Bayan Muna v. Romulo, G.R. No. 159618, 2011).  2011).  Q: The President President alone withou t the c oncurrence of the Senate Senate abrogated a treaty. treaty. Assum e that the other country party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case case involvin g the validity of t he treaty treaty abrogation is brough t to the SC SC,, how should it be resolved?  A:  First, the president enjoys some leeway l eeway in withdrawing from agreements which he or she determines to be contrary to the Constitution or statutes.  statutes.   Second, the president cannot unilaterally withdraw from agreements which were entered into pursuant to congressional imprimatur.

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Third, the President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence. Ultimately, the exercise of discretion to withdraw from treaties and international agreements is susceptible to judicial review in cases attended by grave abuse of discretion, as when there is no clear, definite, or reliable showing of repugnance to the Constitution or our statutes, or in cases of inordinate unilateral withdrawal violating requisite legislative involvement. (Pangilinan v. Cayetano, G.R. Nos. 238875, 239483 & 240954, 2021)  2021)   Q: When When m ay the Pre President sident opt to enter into an executive executive agreement?  A:  Executive agreements are concluded (1) to adjust the details of a treaty, e.g., EDCA as to VFA; (2) pursuant to or upon confirmation by an act of the Legislature; or (3) in the exercise of the President's independent powers under the Constitution. Q: May the President enter into an executive agreement on foreign military bases, troops or facilities?   facilities?  A:  Yes, but only if the executive agreement (a) is not the instrument that allows the presence of foreign military bases, troops or facilities; or (b) merely aims to implement an existing law or treaty. (Saguisag v. Exec. Sec., 2016) 2016) Q: What What are the consti tutional restriction s on t he power of the President President to c ontract or g uara uarantee ntee foreign loans on behalf of the State State? ?  A:  It is subject to the prior concurrence of the Monetary Board and subject to such limitations as may be prescribed by law. (PHIL. CONST., Sec. 20, Art. VII).  VII).  Q: What is an “item” under an appropriations bill?    A:  An item in an appropriation bill is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill. An item of appropriation must be an item characterized by singular correspondence, which is an allocation of a specified singular amount for a specified singular purpose known as a "line-item." (Belgica v. Ochoa, 2013). Q: May May an appropriation be validly apportioned into c omponent percentage or values?  A:  Yes, provided that each percentage or value must be allocated for its own corresponding purpose for such component to be considered a proper line-item. l ine-item. (Belgica v. Ochoa, 2013). Q: Distinguish b etween etween th e President’s general veto power and item/line veto.  veto.    A:   1. General veto power   -- If the President wants to veto a provision in an ordinary bill, the entire entire bill is vetoed.   vetoed. 2. Item/line veto – veto  – veto separate items, not the ENTIRE bill. ONLY in an appropriation, revenue or tariff bill. (PHIL. CONST., Sec. 27, Art. VI).  VI).   Q: What What is the Doctrine of inappropriate provisions ?  A:  A provision that is constitutionally inappropriate for an appropriation bill may bill may be singled out for veto even if it is NOT an appropriation or o r revenue item (refers to riders). Included are: 1. unconstitutional provisions and 2.

provisions which are intended to amend other laws. (Philconsa (Philconsa vs. Enriquez, G.R. No. 113105, 1994) 1994)

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b. Legislativ e Privileges Q: What What is the extent extent of t he immunity from arrest of legislators?  A:  Legislators are privileged from arrest while Congress is in session only (whether regular or special) with respect to offenses punishable by not more than 6 years of imprisonment. The immunity does not extend to the prosecution of criminal offenses. (PHIL. CONST., art. VI, § 11.) 11.) Q: What What is covered by pri vileged speech?  A:  No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any speech or debate in i n Congress or in any Committee thereof. (PHIL. CONST.,  art. VI, § 11.) 11.) “Speech or debate” includes:  includes:   ● Utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session ● Bills introduced in Congress, whether the same is in session or not ● Other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question. (Jimenez v. Cabangbang, G.R. No. L-15905, 1966) Limitations: 1. Protection is only against prosecution in any forum forum other than Congress itself. Hence, the the Senate or the House may discipline their respective members. 2. The ‘speech or debate’ must be made in performance of their duties as members of Congress.   3. Congress need not be in session when the utterance is made, as long as it forms part of legislative action (e.g. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress’  jurisdiction) Q: What What are the requirements to avail of th e Priv Priv ilege of Speech and De Debate bate Clause?  A:   1. That the remarks must be made while the legislature or the legislative committee is functioning, that is, in session; and 2. That they mu must st be made made in connection with the discharge of official duties

c. House of Representa Representatives tives Q: What What is the rule on Apporti onment of Legislative Districts?  A:   1. It must must be based on uniform and progressive ratio ratio 2. Each city with at least 250,000 250,000 inhabitants shall be entitled to at least 1 representative; representative; and 3. Each province, irrespective of number of inhabitants, shall b be e entitled to a att least 1 representative. 4. Each legislative district district shall comprise, as far as practicable, contiguous, compact, and and adjacent territory. No gerrymandering. 5. Reapportionment is done by Congress within 3 years following the retu return rn of every census. (PHIL.  §5)   CONST., art. VI, §5) 

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Q: Is Congress precluded from increasing its membership in excess of 250 based based on Sec. 5, 5, Art. VI?   VI?  A:  No, the Constitution does not preclude Congress from increasing its membership by passing a law other than a general apportionment law (Mariano v. COMELEC). Q: Can the ARMM Regional Assembly create Legislative Districts?  A:   No, nothing in Sec. 20, Art. X authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts. This power is vested exclusively excl usively in Congress. Accordingly, Sec. 19, Art. VI of R.A. 9054 granting the ARMM Regional Assembly the power to create provinces and cities, is VOID for being contrary to Sec. 5, Art. VI, and Sec. 20, Art. X, as well as Sec.3 of the Ordinance appended to the Constitution (Sema v. COMELEC, 2008). Q: Is the population requirement of 250,000 an indispensable Constitutional requirement for the creation of a new legislative legislative district?  A:  Distinction must be made between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. While a province is entitled to at least 1 representative regardless of population, a city must initially meet a minimum population of 250,000 in order to be similarly entitled (Aquino v. COMELEC, G.R. No. 189793, 2010.) Q: Does a city have to increase its population by another 250,000 to be entitled to an additional district?  A:  No, while Sec. 5(3), Art. VI requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. Q: In In case of vacancy i n the Se Senate nate or the HOR, HOR, is it mandator y to fill up the vacancy ?    A:  No, Sec. 9 of Art VI provides, “In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term (See also Tolentino v. COMELEC, G.R. No. 187958, 2004). Q: What What are the requisites f or the valid transfer of appropr iated funds u nder Se Sec c 25( 25(5) 5)? ?  A:   1. There is a law  authorizing the President, Senate President, Speaker, Chief Justice, and heads of the Constitutional Commissions; 2. The funds to be transferred are savings savings generated  generated from the appropriations for their respective offices; and 3. The purpose of the the transfe transferr is to augment an item in the general appropriations law for their respective offices. offices . (Araullo v. Aquino, Aquino, G.R. No. 209287, 2014). Q: When When can the President exe exercise rcise the pow er of augmentation?  A:  The President may, by law, be authorized to augment any item in the General Appropriations Law, their respective offices from savings in other items of their respective appropriations (PHIL. CONST., art. VI, §25; Sanchez v. COA). COA). The case of Sanchez v. COA cited RA 7180 for its definition of savings where Savings refer to portions or balances of any programmed appropriation free of any obligation or encumbrance still available after the satisfactory completion or unavoidable discontinuance or abandonment of the work, activity or o r purpose for

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which the appropriation is authorized, or arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay. p ay. Savings refer to portions or balances of any released appropriations in the General Appropriations Act which have not been obligated as a result of any of the following: (a) completion, final discontinuance, or or abandonment of a program, activity or project for which the appropriation is authorized; or (b) implementation of measures resulting in improved systems and efficiencies and thus enabled an agency to meet and deliver the required or planned targets, programs and services approved in the GAA at a lesser cost. In case final discontinuance or abandonment abandonment is used as basis in the declaration of savings, such discontinued or abandoned program, activity or project shall no longer be proposed p roposed for funding in the next two (2) fiscal years. Allotments that were not obligated due to the fault of the agency concerned shall not be considered savings. (GAA 2022) 

d. Legislativ e Department Department Q: What What are the non-legislative functions o f Congress?  A:   1. To act as national national board of canvassers for President and Vice Pre President. sident. (PHIL. CONST., Art.  Art. VII, sec. 4). 2. To decide whether the President President is temporarily disabled in the event he reassumes reassumes his office after the Cabinet, by a majority of vote of its members, declares that he is unable to discharge the powers and duties of his office. (PHIL. CONST., Art.  Art. VII, sec. 11). 3. To concur in the grant grant of amnesty by the President. (PHIL. CONST., Art.  Art. VII, VII, sec. 19). 4. To initiate (HOR) and, to try all cases of impeachment (Senate), against the the:: a. President b. Vice President c. Members of the SC d. Members of the Constitutional Commissions e. Ombudsman (PHIL. CONST., Art.  Art. XI, Sec. 2-3). 2-3).   5. To act as a constituent assembly for the revision or amend amendment ment of the Constitution. (PHIL. CONST.,   Art. XVII). XVII). Q: Differentiate legisl ative inqu iries u nder Sec. 21 and 22 of Art VI.  A:   INQUIRY IN AID OF LEGISLATION  LEGISLATION 

QUESTION HOUR HOUR  

Sec. 21, Art. VI

Sec. 22, Art. VI

Purpose is to Elicit information that may be used Oversight Function for legislation Exceptions as to persons include: (1) President (2) Supreme Court Justices (3) Members of the AFP if prevented by the President as the Commander-In-Chief (Gudani (Gudani v. Senga,, 2006) Senga

Exceptions as to persons include: “All heads of of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.” (Section1, EO 464)  464)  

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Exception as to information: (1) Executive privilege which must be invoked invok ed by the President himself or through the Executive Secretary by authority of the President (Senate v. Ermita, 2006)  2006)   (2) Privileged information, e.g., national defense, diplomatic, military secrets. (3) Right against self-incrimination Mandatory

Discretionary

Q: Does the sub judice rule judice rule apply in inquiries in aid of legislation?  legislation?    A:  No. The sub judice rule judice rule does not apply in inquiries in aid of legislation. The Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose. Hence, no individual can escape the power of the Senate to investigate, inv estigate, even if he or she has a pending administrative or criminal case. (Sabio v. Gordon, G.R. No. 174340, 2006). 200 6).   Q: What What is the scope of the Bicameral Bicameral Conference Committee’s powers?  powers?   A:  The Bicameral Conference Committee may: 1. Adopt the Bill entirely; or 2. Amend; or 3. 4. 5.

Revise; or Reconcile the House Bill and the Senate Bills; Propose entirely entirely new provisions provisions not found in either the the House Bill or the Senate Senate Bill. (Amendments (Amendments in the nature of a substitute)

e.

Party-List

Q: What What organizations organizations or parties cannot register as political parties in this j urisdictio n?  A:   1. Religious sects 2. Those which seek to achieve their go goals als through unlawful means means 3. Those which refuse refuse to a adhere dhere to the Constitution 4.  Those which are supported by any foreign government. (PHIL. CONST., art. IX-C, §2(5)) 

Q: Explain Explain t he formula for allocating seats for p arty-list representative representatives. s.  A:  The 20% Allocation — The combined number of all party-list representatives shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party list. However, this only prescribes a ceiling and is not considered mandatory. No. of seats available to Party-List Reps. = (No. of seats available to District Reps./0.80) x (0.20)

Two Votes 1. 2.

1st vote — For the district representative 2nd vote — For the party-list representative (but it is the name of the party that is indicated indicat ed in the ballot)

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The 2% Threshold and 3-Seat Limit 1. 2. 3. 4. 5.

The parties shall be ranked from from the highest to to lowest based on the number of votes they garnered. To be entitled entitled to one qualifying seat, a party must obtain 2% of the total ballots cast for for qualified partylist candidates. Votes cast for for a party party which is not entitled to be vot voted ed for should not not be counted. The The votes they obtained shall be deducted from the canvass of the total votes for the party-list. Rounding-off is not allowed. Parties other other than the 1st party (the party tthat hat obtained the highest number of votes b based ased on plurality) may be entitled to additional seats based on the following formula:

Each party is shall be entitled to not more than three sets. The two percent threshold in computing for the additional seats is unconstitutional. The continued application of the two percent threshold in the application of additional seats in proportion to their total number of votes until all the additional seats will frustrate the attainment of the permissive pe rmissive ceiling that twenty percent of the members of the house of representatives shall consist of party-list representatives. (BANAT v. COMELEC, G.R. No. 179271, 2009)  2009)   In declaring the two percent threshold unconstitutional, the SC did not limit the allocation of additional seats to the two-percenters. Thus: 1) The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number nu mber of votes cast for party-list candidates. There are two steps in the second round of seat allocation. 2) First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the twopercenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a party’s share in the remaining available seats. 3) Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat s eat allocation. 4) Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. (BANAT v. COMELEC, G.R. G.R. No. 179271, 2009) 2009 )  Q: Is the formula Banat v. COMELEC still being followed and applied?  A: Yes. In ANGKLA In ANGKLA v. COMELEC, COMELEC, the SC affirmed the BANAT BANAT formula,  formula, to wit:  As finally settled in the landmark case of BANAT, Section 11 (b) of RA 7941 is to be applied, thus: Round 1: a. a.   The participating parties, orga organizations nizations or coalitions shall be ranked from highest to lowest based based on the number of votes they each garnered in the party-list election. b. b.   Each of those receiving at least two-percent (2%) of the total total votes cast for the party-list system shall be entitled to and guaranteed one seat each.

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Rationale: The statute references a two-percent (2%) threshold. The one-seat guarantee based on this Rationale: The arithmetical computation gives substance to this threshold. Round 2, Part 1: a. a.   The percentage of votes garner garnered ed by each of the parties, organizations organizations and coalitions is multiplied by the remaining available seats after Round 1. All party-list participants shall participate in this round regardless of the percentage of votes they garnered. b. b.   The party-list participants shall be entitled to additional additional seats based on the product arrived at in (a). The whole integer of the product corresponds to a party's share in the remaining available seats. Fractional seats shall not be awarded. Rationale:  This formula gives flesh to the proportionality rule in relation to the total number of votes Rationale:  obtained by each of the participating party, organization, or coalition. c. c.   A Party-list s shall hall be awarded no more than two two (2) additional seats. Rationale:: The three-seat cap in the statute is to be observed. Rationale Round 2, Part 2: a. a.   The party-list party, organization or coalition next in rank shall be allocated one additional seat each until all available seats are completely distributed. Rationale: This algorithm endeavors to complete the 20% composition for party-list representation in the Rationale: This House of Representatives. During the deliberation, Senior Associate Justice Estela M. Perlas-Bernabe keenly noted that the BANAT formula mirrors the textual progression of Section 11 (b) of RA 7941, as worded, thus: Section 11. Number of Party-List Representatives. —  xxx (b) The parties, organizations, and coalitions receiving at least least tw o-percent o-percent (2% (2%)) of the total v otes cast for the party-list syst em shall be entitled to one seat each: each : Provided, That those garnering more than two-percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: votes : Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. The first round of seat allocation is based on the first sentence of Section Section 11 ((b) b) while the second round is based on the first provi so. To prescribe a method of seat allocation contrary to the unequivocal language of RA 7941 would be nothing short of judicial legislation, if not usurpation of legislative powers, as it would allow us to substitute the wisdom of Congress with ours. ( ANGKLA:  ANGKLA: Ang Partido ng mga Pilipinong Marino, Inc. v. COMELEC, G.R. No. 246816, 2020) 2020 ) NOTE: Justi ce Leonen has NOTE: Leonen  has a keen analysis of the adverse effect of imposing a two-percent two- percent (2%) deduction on the two-percenters: two-percenters: “Ignoring votes in the reckoning of proportions runs afoul of a party -list election as a race contested by the entire roster of candidates and won in consideration of all the votes cast by the electorate. Reckoning on the basis of a "recomputed number of votes" artificially redraws the electoral terrain. It results in the distribution of remaining party-list seats based on an altered field of contestants and diminished number of votes. This undoes the logical advantage earned by those that hurdled the twopercent-threshold and enables the election of groups even if their performance was manifestly worst off than those who have hurdled the basic threshold. To concede petitioners' plea would be to negate the valid and sensible distinction between those that hurdled the threshold and those that did not. Ultimately, it

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violates the party-list system's fundamental objective of enabling "meaningful representation [secured through] the mandate mandate of a sufficient number of people." (citations omitted) ( ANGKLA  ANGKLA v. COMELEC, G.R. G.R. No. 246816, 2020) 2020)

f.

Powers of Constituti onal Commissio ns

Q: May the CSC disallow an appointment to a position authorized by law but not included in the Index Inde x of Occupational Service? Service?  A:  No. Although the CSC rules limit appointments to positions within the Index of Occupational Service, nevertheless, it is also bound to implement the laws it is tasked to enforce. RA 8494 exempted the Trade and Investment Corporation from conforming to the position classification, thus, the appointment made even not within the index is still valid (Trade and Investment v. CSC, G.R.No.182249, 2013). 2013 ). Q: May May the CSC CSC te termi rmi nate the emplo emplo yment o f a civil s ervant?  A:  No, the CSC is not a co-manager or surrogate administrator of government offices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their compliance with requirements of the Civil Service Law. On its own, the Commission does not have the power to terminate employment or drop members from the rolls. (UP and Torres v. CSC, G.R. No. 132860, 2001 citing Chang v. CSC, G.R. No. 86791, 1990). Q: What What is the concept of security of tenure in the Civil Service Law?  A:   “No officer or employee of the civil service shall be removed or suspended except for cause provided by law.” (Section 2(3), Article IX-B). Q: What What are the classes of non -competitive positions ?    A:   1. Policy determining determining Where the officer lays down principal or fundamental guidelines or rules or formulates a method of action for government or any of its subdivisions. E.g. department dep artment head. (Nachura (Nachura)) 2. Primarily confidential  A position position is considered primarily confidential if the nature of the office requires requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. 3.

Highly technical It means something beyond the ordinary requirements of the profession. Hence, its determination is always a question of fact. (CSC v. Javier, G.R. No. 173264, 2008).  2008).  

Q: Are  Are  individuals occupying non-competitive position covered by the guarantee of security of tenure?  A:  They are covered by the guarantee of security of tenure but the termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of the term of office. o ffice. (Tanjay v. Quinit, G.R. No. 160502, 2007). Q: What is “partisan political campaign”?  campaign”?    A:  The phrase involves any form of solicitation of the elector’s vote in favor of a specific candidate. But this does not prevent the expression of views on current political problems or issues, or mention of the names of candidates for public office whom the public officer supports. supports . (Gonzales v. Comelec, G.R. No. L-27833, 1969).

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Q: Who are exempt from the prohibition on engaging in electioneering and partisan political campaign?   campaign?  A:   Exempt from this provision are members of the Cabinet and public officers and employees holding political offices. (Santos v. Yatco, G.R. No. L-16133, 1959). 19 59). Q: What What is the rule r ega egarding rding elective/a elective/appoint ppoint ed officials hold ing mul tiple positi ons? What are the exceptions, exce ptions, i f any?    A:   1. No candidate who has lost in any election shall, within 1 year after such election, election, be appointed to any office in the Government of any GOCC or in any of their subsidiaries. (PHIL. CONST., Art.  Art. IX-B, §6)   2. No elective official shall be eligible for for appoint or designation in any capacity to any public public office or position during his tenure. (PHIL. CONST., Art.  Art. IX-B, IX-B, § 7, ¶ 1)  Exceptions:  a. The Vice President President may be appointed as member of the the Cabinet b. Member of the Congress is designated to sit in the JBC  3. Unless otherwise otherwise allowed by law or or by the pr primary imary functions of h his is position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or o r instrumentality thereof including GOCCs or their subsidiaries. (PHIL. CONST., art. IX-B, § 7, ¶ 2)   4. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or PHIL. CONST.,

partisan political campaign. ( campaign.  (

 

 art.IX-B, § 2, ¶ 4)

Q: The Civil Service Service Commission t ook back up files in the comp uter of an employee to determine determine if he was acting as counsel for employees with cases before the commission. Is this valid?  valid?    A:  No. To determine whether an employee has a reasonable expectation of privacy, the following factors should be considered: (1) the employee’s employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee; (3) whether the employee took actions to maintain his privacy in the item. The Supreme Court declared that the employee did not have a reasonable expectation of privacy over the computer files in view of the following facts: (1) The employee’s computer was issued by the t he government, and could be used only for government business, (2) There was a memo policy restricting use of the computer expressly stating that the use of password does not imply privacy, and (3) She allowed other people to access the computer; and (4) There is reasonable ground for suspecting the computer files will produce evidence of the misconduct of the employee. (Pollo ( Pollo v. Constantino-David, G.R. No. 181881, 2011) 2011) Q: To what extent can COM COMELEC ELEC enforc e laws and regulatio ns?  A: The COMELEC can enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (PHIL. CONST., Sec. 2(1), Art. IX).   The COMELEC can take cognizance of any question on the conduct of plebiscite such as to correct or check what the Board of Canvassers erroneously or fraudulently did during the canvassing, verify or ascertain the results of the plebiscite either through pre pre -proclamation case or through revision of ballots ballots.. (Buac v. Comelec, G.R. No. 155855, 2004).  The power of the COMELEC to ascertain the results of the plebiscite is implicit in the power to enforce all laws relative to the conduct of plebiscite. (Buac plebiscite.  (Buac v. Comelec, G.R. No. 155855, 2004).  

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Q: When When can COME COMELEC LEC e exerci xerci se cont empt po wers?  A: COMELEC can exercise exercise this power only in relation to its adjud adjudicatory icatory or quasi-judicial functions. It CANNOT exercise this in connection with its purely executive or ministerial functions.   NOTE: If it is a pre-proclamation controversy, NOTE: controversy, the COMELEC exercises exercises quasi-judicial or administrative powers. (Sandoval v. COMELEC, G.R. No. 133842, 2000). 2000 ). Its jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial ju dicial functions. functions. (PHIL.  CONST., Art.  Art. IX-C, IX-C, Sec. 2(2)) 2(2))..  Q: What is the vote requirement for a valid COMELEC en Banc resolution?  A:  A majority of the votes, or 4 votes. If the six members are evenly divided, the Commission on Elections should rehear the case (Sevilla v. COMELEC, G.R. 203833, 2013). 2013).  Q: What What are the pow ers not g iven to COMELE COMELEC? C?  A:   1. Decide questions questions involving the the right to vote (placed under jurisdiction of courts) (PHIL. CONST., Art.  Art. IXIXC Sec. 2(3); Sec. 33, R.A. No. 8189) 8189);; 2. Transfer municipalities from one congressional congressional district to another another for the p purpose urpose of preserving proportionality. (Montejo v. COMELEC, G.R. No. 118702, 1995).  1995).   Q: Can Can t he CO COME MELEC LEC disqualify candid ate ates s w ho c annot w age a nationwide campaign and are not nominated by a political party as candidates in elections? elections?  A:  Yes. The equal access to opportunities for public office under Article II is not self-executory. It neither bestows a right nor elevates the privilege to the level of an enforceable right. Such privilege may be 2004 ) subjected to limitations. (Chavez (Chavez v. COMELEC, G.R. No. 161872, 2004) Q. What cases decided by COMELEC are subject to judicial review?  A:  Decisions or determinations by COMELEC in the exercise of its i ts administrative (not quasi-judicial) power may be questioned in an ordinary civil action ac tion before the trial court. (Filipinas Engineering & Machine Shop v. Ferrer, G.R. No. L-31455, 1985). If the COMELEC, in deciding a case, is exercising quasi-judicial functions, the remedy is to go to the Supreme Court via Rule 65 (Rule 64, Rules of Court). Q: Who has jurisdiction to determine the presence of “probable cause” in election cases?    A:  The finding of probable cause and the prosecution of election offenses rest in the COMELEC’s sound discretion. (Baytan v. COMELEC G.R. No. 153945, 2003). The Chief State Prosecutor, who may have been designated by the COMELEC to prosecute a criminal action, merely derives his authority from the COMELEC. It is beyond his power to oppose tthe he appeal made by COMELEC. (Comelec v. Silva, G.R. No. 129417, 1998). Q: How is judic ial review of COMELE COMELEC C decisions in voked?  A:  A petition for certiorari via Rule 65 of the ROC is filed with the SC within 30days from receipt of a copy of a final order, ruling, or decision of the Commission en banc. (Aratuc v. Comelec, G.R. No. L-49705-09, 1979).   1979).

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Q: What What are the funct ions o f the COA?  A:   1. Examine and audit all of government revenues 2. Examine and audit audit all all forms forms of government expenditures 3. Settle government accounts 4. Promulgate accounting and auditing rules including those for the prevention and disallowa disallowance nce of 5.

irregular, unnecessary, excessive, extravagant or unconscionable expenditures. Decide administrative cases involving involving expenditures of p public ublic funds funds

Q: A was a career ambassador when he accepted an ad interim appointment as Cabinet member. The COA bypassed his ad interim appointment, however, and he was not reappointed. Can he reassume his posi tion as a caree careerr ambassador?  A:   No. His ad interim appointment as a Cabinet member was a permanent appointment (Summers v. Ozaeta, G.R. No. L-1534, 1948).  He abandoned his position as Ambassador when he accepted his appointment as Cabinet Member because as Cabinet Member, he could not hold any other office during his tenure. Q: Does Does the CO COA A have jurisdicti on over the Loc al Wa Water ter Utilities Administration?  A:  Yes. A water district is a GOCC with a special charter. Under Section 2, Subdivision D, Article IX of the 1987 Constitution, it is the mandate of the COA to audit all government agencies, including GOCCs with original charters. (Barbo v. COA G.R. No. 157542, 2008) If COA finds the internal control system of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies. (PHIL.  CONST.,  Art. IX-D, Sec.1(1)). Keep the general accounts of the government, preserving vouchers and other supporting papers pertaining thereto. (PHIL. CONST., Art.IX-D,  Art.IX-D, Sec. 2(1)). Exclusive authority to define the scope of COA’s audit and examination and to establish the techniques and methods required. (PHIL. CONST., Art.IX-D,  Art.IX-D, Sec. 2(2)). Promulgate accounting and auditing rules and regulations: 1. Including those for the prevention or disallowance disallowance of irregular, unnecessary, excessive, excessive, extravagant, or unconscionable expenditures of government funds and properties. 2. Failure to comply with these rules can be a ground for disapproving the payment payment of a proposed proposed expenditure. (Caltex v. COA, G.R. No. 92585, 1992). Q: Can Can C COA OA disallo w TESDA TESDA from paying a healthcar e allow allow ance to their empl oyees?    A:  Yes. TESDA is a government instrumentality, and thus, under the coverage of COA. COA is generally accorded complete discretion in the exercise of its constitutional duty and responsibility to examine and audit expenditures of public funds. Only in instances when COA acts without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction shall the Court interfere. (TESDA v. COA, G.R. No. 196418, 2015).  2015).  

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g. Se Separation paration of Powers Q: What What is the Doctrine or Principle of Separation Separation of Powers?  A: The principle of separation of powers means that legislation belongs to Congress, execution to the Executive, and settlement of legal controversies to the Judiciary. Each is prevented from invading the domain of the others. (Senate Blue Ribbon Committee v. Majaducon, G.R. Nos. 136760 & 138378, 2003) The principle of separation of powers ordains that each of the three great government branches has exclusive cognizance of and is supreme in concerns falling within its own constitutionally allocated sphere. (Republic v. Bayao, G.R. No. 179492, 2013)  2013)  

h. System of Checks Checks and and Balances Balances Q: What What is the Principle of Checks and Bala Balances? nces?  A: The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments dep artments of the government. (Angara v. Electoral Commission, G.R. No. 45081, 1936)  1936)   Examples: a. Legislation in the the form of an enrolled enrolled bill needs final approval fr from om the President to become a law; b. President must must obtain the concurrence of Congress to to complete certain acts ((e.g. e.g. granting of amnesty); amnesty); c. Money can be released ffrom rom the Treasury only only by authority of Congress; d. Appropriation, revenue, revenue, tariff, increases increases in public debt and private bills originate in House of Representatives; e. SC can declare acts acts of Congress or the Executive unconstitutional. unconstitutional.  

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10. PROCESS OF LEGISLATION Q: What is the Three-Reading Three-Reading Rul e?  A: No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. (PHIL. CONST., Sec. 26(2), Art. VII)  VII)  Q: What What is the Enrolled Bill Doctrine?  A: Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed is conclusive not only as to its provisions provisions but also as to its due enactment. The rationale behind the enrolled bill doctrine rests on the consideration that "[t]he respect due to coequal and independent departments requires the [Judiciary] to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the court to determine, when the question properly arises, [as in the instant consolidated cases], whether the Act, so authenticated, is in conformity with the Constitution." (Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Education, G.R. Nos. 216930, 217451, 217752, 218045, 218098, 218123 & 218465, 2018)  2018)   Q: Once Once the Enrolled Bill is transmitted to th e Pre President, sident, what are the ways ways by which i t becomes a law?  A: 1) Signed Into Law by the President President - If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. 2) Overrid Override e of President’s Veto by Both Houses of Congress Congress - If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. 3) Lapsed Into Law (after 30 days without the President’s veto) veto) - The President shall communicate his veto of any bill to the House where it originated within thirty days  days   after the date of receipt thereof; otherwise, it shall become a law law as if he had si gned it . (PHIL. CONST., Sec. 27(1), Art. VII)  VII)   Q: May May Congress provid e the criteria necessary necessary for th e creation creation of a city, includin g the conversion of a municipality into a city in another law?  A:  No, the constitution requires the Congress to stipulate in the Local Government Code all the criteria necessary for such. (Sec. 10, Article X, PHIL. CONST.) Income is changed from 20 to 100 million and meets either of the following: a) contiguous territory of 2000 square kilometers; b) population not less than 250,000. (League (League of Cities of the Phil. et al. v. COMELEC, et al., G.R. No. 176951; G.R. No. 177499; G.R. No. 178056, 2011 and Local Government Code, Sec. 461).   NOTE: In the case of League of Cities of the Philippines et al v. COMELEC, the Court ruled that the NOTE: Cityhood Laws converting 33 municipalities into component cities prior to amendment of RA No. 9009 amending the qualifications for the conversion to a city is constitutional, it stated: “From the th e foregoing, the  justness in the act of Congress in enacting the Cityhood Laws becomes obvious, especially especiall y considering that 33 municipalities were converted into component cities almost immediately prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood Laws, Congress merely took the 1 16 6 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement

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of R.A. No. 9009, acknowledging the "privilege" that they have already given to those newly-converted component cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or "class" as the respondent municipalities. Congress merely recognized the capacity and readiness of respondent municipalities to become become component cities of their respective provinces.” (League of Cities of

the Phil. et al. v. COMELEC, et al., G.R. No. 176951; G.R. No. 177499; G.R. No. 178056, 2011)   Q: What are the limitations to Congress’ plenary power of legislation?  legislation?    A:   1. Substantive – Substantive – Limits  Limits the content of laws a. Express limitations i. No ex post facto laws ii. No bill of attainder iii. Congress may may not increase appropriations recommended recommended by the President for for the operation operation of government as specified in the budget. (PHIL. CONST.,  Sec. 25(1), Art.VI).  Art.VI).   iv. No public mo money ney or property shall be appropriated, applied, paid, or employed, directly or indirectly for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religious teacher, or dignitary as such, EXCEPT when such priest, preacher, minister, or dignitary is assigned to the: 1. armed forces, or

2.

2. any penal institution, or 3. government orphanage, or 4. government leprosarium (PHIL. CONST., Sec. 29(2), Art. VI).  VI).   v. No law inc increasing reasing the appellate jurisdiction of the SC witho without ut its ad advice vice and concurrence. (PHIL. CONST., Sec. 30, Art. VI).  VI).   vi. All revenues revenues and assets of non-stock, non-profit educational institutions used a actually, ctually, directly, and exclusively for educational purposes shall be exempt from taxes ad duties. (PHIL. CONST.,  Sec. 4(3), Art. XIV).  XIV).   vii. No law granting a title of royalty or nobility shall be be passed. (PHIL. CONST., Sec. 31, Art. VI).  VI).   b. Implied i. Non-delegation of legislative powers: delegate potestas non potest delegari. delegari . ii. Prohibition against the passage of irrepealable laws (Abas Kida v Senate, G.R. No. 196271, 2011)   2011) Procedural a. One-title-one-subject (proscription against riders) b. Appropriation, revenue, tariff, tariff, increases in public debt and private bills originate in the House of Representatives but the Senate may propose or concur with amendments. (PHIL. CONST., art. VI, § 24)  24)  c. Three readings on separate days EXCEPT: 1.  When the president certifies to to its immediate enactment to meet meet a public calamity or emergency. (PHIL. CONST., Sec.26, Art. VI). 2. 2.   Calling for a special election during during vacancy in the offices of the President and Vice-President (PHIL. CONST., Sec. 10, Art VII).

Q: What What is the basis for d ete etermining rmining the existence of a quorum in the Se Senate? nate?  A: The basis in determining the existence of a quorum in the Senate is the total number of Senators who are in the country and within the coercive jurisdiction of jurisdiction of the Senate. Those who are out of the country, can

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not be contacted, or incapacitated will not be included in the total number of the Senators for the purpose of counting majority or quorum. (Avelino v. Cuenco, G.R. Np. L-2821, 1949). Q: What What are the voting m ajorities required in Congress?  A:   NATURE OF PROCEED PROCEEDING ING

REQUIRED VOTES

BASIS BA SIS

SENATE To Concur in a Treaty Treaty

2/3 of All

Sec. 21, Art. VII

Conviction in Impeachment Impeachment

2/3 of All

Sec. 3(6), Art. XI

REPRESENTATIVES  HOUSE OF REPRESENTATIVES   Af firm fi rm /Overr ide id e Resol utio ut io n t o Impeach

1/3 of All

Sec. 3(3), Art. XI

COMMON TO BOTH BOTH   Discipline Members

2/3 of All

Sec. 16(3)

Election Ele ction of Officers

Majority of All

Sec. 16(1)

De Declare clare the Exist ence of a State of War

2/3 of Both Houses, voting separately

Sec. 23

Override President's Veto

2/3 approval of both Houses (separately  –   –  first with the house where it originated, then sent to the other House.

Sec. 27(1)

Quorum to do business

Majority w/in Compulsive Power of the House

Sec. 16(2); Cuenco   Cuenco

Majority of All

Sec. 28(4)

Tax Tax Exe Exemption mption Confirmation of n ew VP nominated nominated by President

Majority of Both voting separately

Determination that Pres. Unable to discharge powers & duties

2/3 of Both Houses, voting separately

Sec. 11, Art. VII

Majority of separately

Sec. 4, Art. VII

To break a tie in presi dential election

All,

Houses,

voting

Sec. 9, Art. VII

 Avelino

v.

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Revocation of Proc. Of Ma Martial rtial L aw/ Suspension of Priv. of Writ of Habeas Corpus

Majority of All, voting jointly

Sec. 18, Art. VII

Extension of Proc. Of ML/Suspension of Priv . of WHC

Majority of All, voting jointly

Sec. 18, Art. VII

Majority of All

Sec. 19, Art. VII

To Concur w/ President President in granting amnesty

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11. NATURAL RESOURCES Q: What are the state owned properties?  A: State Owned: (PWEFFOM) 1. Lands of the Public domain 2. Waters 3. Minerals, coals, petroleum, and other mineral oils 4. All sources of potential Energy 5. Fisheries 6. Forests or timber 7. Wildlife 8. Flora and fauna 9. Other natural resources (PHIL. CONST., art. XII, § 2) Q: To what extent may the State alienate land of the public domain?  A: General Rule: All natural resources cannot be alienated. ali enated. Exception: Agricultural lands Limitations on the disposition of the State of alienable lands of the public domain 1. Only agricultural agricultural lands of the public domain may be alienated; 2. Only Filipino citizens citizens may acquire lands not more than 12 hectares by purchase, homestead or grant or lease no more than 500 hectares. Private corporations may lease not more than 1,000 hectares for 25 years renewable for another 25 years. (PHIL. CONST., art. XII, § 3)  3)  3. The exploration, development and utilization (EDU) (EDU) of of all natural resources resources shall be under under the full control and supervision of the State either by directly undertaking such EDU or through co-production,  joint venture, or production production sharing agreements with with qualified persons. 4. The use and and enjoyment of the marine wealth of the archipelagic archipelagic waters, terr territorial itorial sea, and the EEZ shall be reserved for Filipino citizens 5. Utilization of natural resources in rivers, lakes, bays and lagoons may be allowed only on a ‘small scale’ to Filipino citizens or cooperatives cooperat ives— — with priority for subsistence fishermen and fish workers. (PHIL. CONST., art. XII, § 2)  2)  Q: How How does lands of public d ominion b ecome private land?  A: 1. Acquired from the Go Government vernment by purchase purchase or grant. 2. Uninterrupted possession by the occupant and his predecessors-in-interest predecessors-in-interest since time immem immemorial. orial. 3. Open, exclusive, exclusive, and undisputed possession of ALIEN ALIENABLE ABLE (agricultural) (agricultural) public land for a period of 30 years. 1. Upon completion of the requisite period, the land becomes private property property ipso jure without jure without need of any judicial or other sanction. 2. Possession since time immemorial leads to the presumption tthat hat the land was never never part of public domain. 3. In computing computing 30 years, start from when the land was converted to to alienable land, n not ot when it was still forest land 4. Presumption is always always that land belongs to the State. State.

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Q: When When is the citizenship citizenship required by the consti tution in economi c activities?  A:  ACTIVITY EXPLORATION OF

CITIZENSHIP CITIZENS HIP AND/OR EQUITY EQUITY REQUIREMENTS REQUIREMENTS 1. Filipino citizens 2. Domestic Corporations (60%

NATURAL RESOURCES

Filipino owned)

OPERATION OF PUBLIC UTILITIES

1. Filipino citizens 2. Domestic Corporations (60% Filipino owned)

 ACQUISITION OF  ALIENABL  AL IENABL E LANDS LA NDS OF THE PUBLIC DOMAIN

1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) 3. Former natural-born citizens of RP (as transferees with certain legal restrictions) 4. Alien heirs (as transferees in case of intestate succession) 1. Filipino citizens only (natural

PRACTICE OF ALL PROFESSIONS

persons) 2. Congress may, by law, otherwise prescribe

MASS MEDIA

1. Filipino citizens 2. Domestic Corporations (100% Filipino owned)

 ADVERTISING

1. Filipino citizens 2. Domestic Corporations (70% Filipino owned) 1. Filipino citizens 2. Domestic Corporations (60% Filipino owned)

EDUCATIONAL INSTITUTION

Exception:: Schools established by religious groups and mission boards. Exception Congress may, by law, increase Filipino requirements for ALL educational institutions.

OTHER ECONOMIC  ACTIVITIES

Congress may, by law, reserve to Filipino citizens or to Domestic Corporations (60% Filipino owned or higher) certain investment areas.

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Q: What What are the tests to determine the nationality of a cor poration?  A: 1. Voting Control Test Test  – the  – the ownership threshold must be complied by the voting shares. 2. Beneficial Ownership Test  Test – the  – the ownership threshold must also apply to the outstanding capital. And “capital” should be interpreted to include only voting shares. Hence, in the computation for “capital,” only common stock will be considered and not preferred shares. (Gamboa, et.al. v. Finance Secretary, G.R. 176579, 2011).  2011).   Q: What is covered by the term “capital”?  “capital”?    A: Pursuant to the Gamboa directive, Section 2 of SEC-MC No. 8 provides:   “Section 2. All categories shall, at all times, observe the constitutional c onstitutional or statutory ownership requirement. For purposes of determining compliance therewith, the required percentage of Filipino ownership shall be applied to BOTH (a) the total number of outstanding shares of stock entitled to vote in the election of directors; and, (b) the total number of outstanding shares of stock, whether or not entitled to vote.” v ote.” (Roy III v. Herbosa, G.R. No. 207246, 2016)   Q: What are the constitutional limitations placed for exploration, development and utilization of natural resources?  A: The exploration, development and utilization (EDU) of all natural resources shall be under the full control and supervision of the State either by directly undertaking such EDU or through coproduction, joint venture, or production sharing agreements with Filipino Citizens or corporations or associations at least 60% of whose capital is owned by such citizens for a period of not exceeding 25 years, renewable for another 25. (PHIL. CONST., art. XII, § 2)  Exception with respect to rule on EDU: For large-scale EDU of minerals, petroleum and other mineral oils, oil s, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. (PHIL. CONST., art. XII, § 2)  The 25-year limit is not applicable to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of power. (PHIL. CONST., art. XII, § 2)   Q: What are the requisites for the President in entering into an agreement for large-scale exploration, development, development, and utilization of mi nera nerals, ls, petroleum, and other mineral oils?  A: 1. The President may enter into agreements agreements with foreign foreign owned corporations corporations involving technical or financial assistance for large-scale exploration, etc. of minerals, petroleum, and other mineral oils. These agreements should be in accordance with the general terms and conditions provided by law. 2. They should be based on the real contributions to economic growth growth and general welfare of the country. 3. In the agreements, the State should promote the development and use of local scientific and technical resources. 4. The President President should notify Co Congress ngress of every contract under this provision within 30 days from its execution. 5. Management and service service contracts are not allowed under this rule. rule. (PHIL. CONST., art. XII, § 2).  2).  The grant of such service contracts must be subject to the t he following safeguards: 1. 2. 3.

it must must be in accordance a general lawgovernment the President must be be thewith signatory for the the President President must report the executed ag agreement reement to Congress within 30 days.

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(La Bugal-B’laan Bugal-B’laan Tribal Association, Inc. v. Ramos, G.R. 127882, 2004, affirmed in a MR in 2005).   Q: What What is the scope of A grarian R Reform? eform?  A: Extends not only to private agricultural lands, but also to “other natural resources,” even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds.” (Sec. 2, R.A. 6657)   Agricultural land held by the church in trust may be subject to land l and reform. The land reform law d does oes not make a distinction between the various forms of ownership, whether in trust or absolute title. (Roman Catholic Archbishop of Caceres v. Secretary of Agrarian Reform, G.R. No. 139285, 2007)   The State shall ensure that poor dwellers in urban and rural areas shall not be evicted nor their dwelling demolished, except in accordance with law. (Sec. 2, R.A. 11201)  

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12. AMENDMENT AND REVISION OF THE CONSTITUTION (ART. XVII) Q: Differentiate Differentiate Amendments from Re Revisions visions :  A:    AMENDMENT  AMENDMENT  

REVISION   REVISION Change in the Constitution

Purpose is to improve specific parts

Purpose is to examine entirety

 Affects only the the specific provision amended

Affects several several provisions

 Adds, reduces, deletes WITHOUT altering basic  Affects basic principles principles  Alters the substantial entirety of the Constitution Constitution  Ex: extending the term limit of members of House H ouse Ex: shift from presidential to parliamentary system; of Representatives; reduction of voting age from altering the principle of separation of powers or the 18 to 15 years system of checks-and-balances

Q: How How do y ou determine whether the change is an Amendment or a Re Revisio visio n?  A: Two-Part Test in Lambino v. COMELEC, GR No. 174153, 2006: 1. First: Quantitative test – test –  Whether the change is so extensive as to change the “substance entirety” by the number of provisions affected without considering the degree of change ch ange 2. Second: Qualitative Test – Test – Whether  Whether the change will affect the nature of the basic governmental plan. Q: Steps Steps in the Amendatory Process:  A: I. PROPOSAL a. Congressional Assembly Assembly (ConAss) - by a vote of 3/4 of ALL its members members (3/4 Sen Senate ate and 3/4 HOR) (PHIL. CONST., art. XVII, §2)  §2)   NOTE: Constitution is silent if the 2 houses of Congress will be voting jointly or separately. b. Constitutional Convention (ConCon) How called: i. Congress may may call a ConCon by a 2/3 vote of all its members ii. By a major majority ity vote of all its members, members, Congress may submit to the electo electorate rate the question of whether to call a ConCon or not (PHIL. CONST., art. XVII, §3)  §3)   c. People’s Initiative  Initiative  Requirements: i. Petition must must be signed be at at least 12% of ALL REGISTERED REGISTERED VOTERS. VOTERS. ii. Every legislative district represented represented by at least 3% of of the registered registered voters therein. Limitations to People’s Initiative: Initiative: i. No amendment amendment in tthis his manner within 5yrs from ratificat ratification ion of 1987 1987 Constitution; ii. No ame amendment ndment in tthis his manner more often than once every 5yrs th thereafter. ereafter. iii.  Ap  Appl plies ies on ly to Am end endmen men ts ts,, NOT revi si on s. s.  (PHIL. CONST., art. XVII, §2)  §2) 

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II. RATIFICATION Proposed amendment becomes part of the Constitution when ratified by a MAJORITY of votes cast in a plebiscite held not earlier than 60 days nor later than 90 90days days AFTER approval of the proposal by Congress, or the Constitutional Convention, or after certification by COMELEC of the sufficiency of the petition under Sec.2, Art. XVII. (PHIL. CONST., art. XVII, §4) ————-- end of topic ———— ———— ————--

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B. INTERNATIONAL INTERNATIONAL LA W 1. SOURCES SOURCES OF INTERNATIONAL L AW Q: What What are the sourc es of international law?  A: 1. 2. 3. 4.

International conventions, whether general or particular, establishing rules rules expressly reco recognized gnized by the contesting states; International custom, as evidence of a general general practice accepted a as s law; The general principles principles of law reco recognized gnized by civilized nations; Subject to the provisions of Article 59, judicial decisions and the teachings of the m most ost highly q qualified ualified publicists of the various nations, as subsidiary means for the determination of rules of law. (ICJ Statute, art.38(1))   art.38(1))

Q: What What are the primary sources?  A: (TCG) (TCG)   1. Treaties Treaties:: Conventional International Law; International conventions, whether general or particular, establishing rules expressly recognized by the contracting states. 2. Customary International Law: International Law:  International custom, as evidence of a general practice accepted as law; 3. General Principles of Law: Law : General principles of law recognized by civilized nations. (ICJ Statute, art.38(1)(a)-(c)) This art.38(1)(a)-(c))  This is not an independent source of international law. Q: What What are the subsi diary sourc es?  A: (JT) (JT)   1. J udicial decisions; and 2. Teachings of the most highly qualified publicists of the various nations. (ICJ Statute, art. 38(1)(d))  38(1)(d))  Q: What What is a tr eaty?  A:  A treaty is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (VCLT, art. 2(1)(a)).  2(1)(a)).   Q: What What are the requisit es of a treaty?  A:   1. Must be concluded between States 2. In written form 3. Governed by International Law 4. Must be be embodied in a single instrument or in two or more related instruments instruments Q: What What is the basis of a treaty obligation?  A: Treaty obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented (VCLT, art. 34). Q: What is pacta sunt servanda? servanda?  A: Under the principle of pacta sunt servanda, servanda, a state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith. (VCLT, art. 26)  26)  

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Q: What is pacta tertiis tertiis nec nocent nec prosun t ?  A:  A: A  A treaty binds binds the parties and only the parties; it does not create obligations for a third sta state. te. (VCLT, art. 34)   34) Q: Wha Whatt is a custom un der international law?  A: General and consistent practice of States followed by them from a sense of legal obligation. (Restatement (Third) of Foreign Relations Law of the United States)  States)   Q: Wha Whatt are the elements of cust om und er international law? law?    A: 1. State Practice (DUG)  (DUG)  – A  – A consistent and uniform external conduct of States. Generally, both what States say and what they do are considered state practice. p ractice. a. Duration of practice b. Uniformity, consistency of practice c. Generality (majority of specially affected States) (Bernas, States) (Bernas, Public International InternationalLaw, Law, 2009). 2009).   2. Opinio Juris Sive N Necessitatis ecessitatis (O (Opinio pinio J uris)  uris)  – As  – As an element in the formation of customary norm in international law, it is required that States, in their conduct amounting to general practice, must act out a sense of legal duty and not only by the motivation of courtesy, convenience or tradition.

Q: The legal yardstick in determining whether usage has become customary international law is expressed in the maxim “opinio juris sive necessitates” or “opinio juris”  for  for shor t. W What hat does this maxim mean?  A: This refers to the belief on the part of states that a particular practice is required by law, and not because of courtesy or political expedience (North Sea Continental Shelf Cases (ICJ) February 20, 1969). It is the existence of opinio juris that juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol. Q: What What is th e element element of s tate practice?  A: The practice must be consistent and general. However, consistency requires substantial uniformity and not necessarily complete uniformity in practice (Asylum Case (ICJ), (ICJ), November 20,1950). 20,1950). Generality likewise does not require universality. Q: What What is the principle of persistent o bjector?  A: When a State has continuously objected to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable as against that state. (MAGALLONA)   (MAGALLONA) Q: What What is the definition of g ene eneral ral princi ples of law?  A: Principles based on natural justice common to most national systems of law. These refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states (OPPENHEIM). (e.g., good faith, estoppel, exhaustion of local remedies, unjust enrichment). Q: What What are judicial decisions?  A:  A subsidiary means for the determination of rules of law that are acceptable so long as they correctly interpret and apply international law. Decisions of national courts, when applying international law, are acceptable.

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Q: What are “Highly“Highly-qualified publicists?”  publicists?”   A: Highly-qualified publicists are writers whose main value depends de pends on the extent to which their books and an d articles are cited as works of scholarship (i.e based on thorough research into what the law is said to be (lex lata)  lata)  rather than comparing the views of other writers as to what they think the law out to be (lex ferenda).   ferenda).  A highly qualified publicist is a scho scholar lar of public inte international rnational law and the term usually refers refers to legal legal scholars or “academic writers. (Bayan Muna v. Romulo, G.R. No. 159618, 2011).  2011).  

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2. RELATIONSHIP WITH DOMESTIC LAW Q: What What happens w hen there is a con flict b etween etween International law and Domestic law?  A:   1. Inte International rnational Rule or Conflict Resolved by International International Tribunal – Tribunal  – Before  Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. A State,

2.

which has contracted valid international obligations, must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation violati on is manifest and concerns a rule of internal law of fundamental importance. National laws must yield to the laws of nations because international law provides the standards by which legality of State conduct is to be determined. Municipal Rule of Conflict Conflict Resolved by Local Court  –  – When  When the conflict comes before a domestic court, domestic courts are bound to apply the domestic law. Rules of international law are given a standing equal, not superior, to national legislative enactments. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law. (Bernas, Public International Law, 2009).   2009).

Q: How to resolve conflict c onflict between a state’s constitution and international law?  law?   A: When the constitutional violation is manifest and concerns a rule of internal law of fundamental importance, treaty be ignored domestically but only the risk of international repercussions beforethe an international court.can Should a conflict arise between an at international agreement and the Constitution, treaty would not be valid and operative as domestic law. The Constitution, in Article VIII, Section 5(2)(a) explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional. (Bernas, Public International Law, 2009). Q: How How to r esolve conflict between between treaty and domestic legislation?  A: In the case of Secretary of Justice v. Lantion, it Lantion, it was held that efforts should first be exerted to harmonize them, so as to give effect to both. In case it is irreconcilable, municipal courts should uphold municipal law. The fact that international law has been made part of the law of the land does not imply the primacy of international law over municipal law. It was also ruled therein that a treaty may repeal a statute and a statute may repeal a treaty. However, in Pangilinan v. Cayetano, the Supreme Court clarified Lantion Lantion.. It ruled that the principle that a treaty may repeal a statute and a statute may repeal a treaty, was an obiter dictum, misplaced and unsupported by its internal logic. lo gic. (Pangilinan v. Cayetano, G.R 23875)   Q: What What are the theoretical approaches to the relationship between between international law and national law?  A: 1. Monism Monism   – there – there is no substantial distinction between international law and municipal law. Under this theory, international law and domestic law belong to only one system of law. a. Theory 1: Municipal law subsumes and is superior to international law. b. Theory 2: International law is superior to domestic law. 2. Dualism Dualism  –International  –International law and national law are essentially different from each other as to source (i.e., municipal law is a product of local custom or legislation; whereas sources of international law are treaties and custom grown among states.); as regards the relations they regulate (i.e., municipal law regulated relations between individual persons under the state; whereas international law regulates relations between states); and lastly, as to substance (i.e. municipal law is a law of the sovereign over individuals whereas international law is a law between sovereign states). (Bernas, Public International Law, 2009).  2009). 

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For the dualists, when international law and municipal law conflict, municipal law must prevail. (Bernas, Public International Law, 2009)  2009)   Q: What are the theories as to the manner of adopting international law as part of the law of the State?  A:   1) Doctrine of Incorpor ation - The -  The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. (Pharmaceuti (Pharmaceutical cal and Health Care Association v. Duque III, G.R. No. 173034, 2007) 2 007)  EXAMPLE:  The Philippines renounces war as an instrument of national policy, adopts the generally EXAMPLE:  accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Sec. 2, Art. II, 1987 Constitution)  Constitution)   2) Doctrine of Transformation  –   –  The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. (Pharmaceuticall and Health Care Association v. Duque III, G.R. No. 173034, 2007) (Pharmaceutica 2007)   This is based on a strict dualist approach. Since the two systems are distinct and operate separately, for international law to become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress of Parliament. (Bernas, Public International Law, 2009)  2009)   Treaties become part of the law of the th e land through ttransformation ransformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. (Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 2007)  2007)   Q: What What are genera generally lly accepted prin ciples of international law?  A: "Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states, states, i.e., renunciation of war as a an n instrument of national policy, the pr principle inciple of sovereign sovereign immunity, a person's right right to life, liberty a and nd due pr process, ocess, and pacta sunt servanda, among others. The concept of "generally accepted principles of law" has also been depicted in this wise: Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid "va lid through all kinds of h human uman societies." (Judge societies."  (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain principles are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. sy stems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. (Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 2007)  2007)   NOTE:  In PHAP v. Duque, NOTE: In Duque, the SC ruled that the World Health Assembly resolutions promoting breastmilk and rejecting substitutes cannot be considered as law of the land lan d without a law enacted by Congress since the DOH was not able to establish that such rule is being followed by states because they consider it

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obligatory to comply with such rules (opinio (opinio juris). juris). (Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 2007) ————-- end of topic ———— ———— ————--

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C. LABOR LAW 1. BASIC PRINCIPLES Q: What What are the seven seven basic r ights o f workers guarante guaranteed ed by th e Constituti Constituti on?  A: 1. 2. 3. 4. 5. 6. 7.

Right to participate in policy and decision-making processes processes affecting their their rights and benefits benefits as m may ay be provided by law Right to receive a living wage wage Right to conduct collective bargaining or ne negotiations gotiations with ma management nagement Right to humane conditions of work Right to self-organization Right to security of tenure Right to engage in peaceful peaceful concerted activities, including the the right to strike in accordance with law

Q: What What is the principl e of co-determination?  co-determination?    A: This refers to the right of workers to participate in the policy and decision-making processes directly affecting their rights and benefits, without intruding into matters pertaining to management prerogative. (PAL v. NLRC, G.R. No. 85985, 1993)  1993)   Q: What What is the principle of constru ction in favor of labor?    A:  The rudimentary principle that in the implementation and interpretation of the provisions of the Labor Code and its implementing regulations, the workingman's welfare should be the primordial and paramount consideration. The policy is to extend the applicability of the decree to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection to labor . (Rodriguez vs. Park N Ride, 2017 - Leonen)  Leonen)  

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2. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP; TESTS Q: W What hat is the four -fold test?  A: 1. The power to hire hire,, i.e., the selection and engagement of the employee; 2. The payment of wages wages;; 3. 4.

The power of dismissal dismissal;; and The employer's power to control control the  the employee's conduct, or the so called "control test." The control test is commonly regarded as the most important indicator of the presence or absence of an employeremployee relationship. Under this test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end. (Century Properties Inc., v. Babiano, G.R. No. 220978, 2016)  2016)  

Q: What What is th e two-tiered test?    A: In cases where the control test is insufficient to determine the relationship between the parties, the Francisco doctrine adds another test, applied in conjunction with the control test, called the economic dependence test. 1. FIRST TIER: CONTROL TEST  TEST  The putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished. TEST  (ALSO, ECONOMIC DEPENDENCE TEST) Under this 2. SECOND TIER: ECONOMIC REALITY TEST (ALSO, test, the economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is resorted to when the control test is insufficient to give a complete picture and there is serious doubt or genuine confusion as to the relationship of the employee with the employer. In the Philippines, the primary consideration is whether the worker is dependent on the alleged employer for continued employment in that line of business. (Francisco v. NLRC, G.R. No. 170087, 2006)  2006)   Q: When When do es control amount to establishing employeeemployee-employer employer relationship?    A: 1. Rules that merely serve as guidelines towar towards ds the achievement of mutually desired results without dictating the means or methods to be employed in attaining it. These aim only to promote the result. NO EER exists.  exists.   2. Rules that control control or fix the methodology and bind or restrict the party hired to tthe he use of su such ch means. These address both the result and the means used to achieve it and hence, EER exist exist s (Insular Life  Assurance Co, Ltd. Ltd. v. NLRC, G.R. No. 84484, 84484, 1989) Q: What What is the test to determine the existence of an independent contractor ?    A: Whether one claiming to be an independent contractor has contracted to do the work according to his own methods and without being subject to the control of the employer, except only as to the results of the work. (SMC v. Aballa, G.R. No. 149011, 2005)  2005)  

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3. TERMINATION OF EMPLOYMENT Q: Is Is an employee who resigns required to serve advanced notice to the employer?  A:  A: As  As a general rule, an employee must serve notice at at least 1 month in advance. Otherwise, the employer may hold the employee liable for f or damages for failure to comply with this requirement. Except: (SICO) (SICO)   1. 2. 3. 4.

Serious insult by the employer or his representative on the honor and person of the employee; e mployee; Inhuman and unbearable treatment accorded the employee by the employer or his representative; Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and Other causes analogous to any of the foregoing. fo regoing. (Art.  (Art. 300, LC)

Q: What What are the standards that an employer should meet to justif y retrenchment?  retrenchment?    A: The Court has laid down the following standards that an employer should meet to justify retrenchment, namely: (SINS)   1. The expected losses should be Substantial and not merely de minimis in i n extent; 2. The substantial losses apprehended apprehended m must ust be reasonably Imminent; 3. The retrenchment must be reasonably Necessary and likely to effectively prevent the expected losses, and 4. The alleged losses, if already incurred, and the expected expected imminent losses sought to be forestalled must be proved by Sufficient and convincing evidence. Presentation of sufficient evidence is crucial. If the employer only claims that employee's termination is due to its "present business/financial condition, this bare statement falls short of the norm to show a valid retrenchment (Flight Attendants and Stewards Association of the Philippines v. Philippine  Airlines, Inc., Inc., 2018) 2018)   Q: What is the effect if the dismissal of an employee is based on a just or authorized cause but procedural due process requireme requirements nts w ere not satisfied? satisfied?    A:  Although an employer e mployer may legally dismiss an employee for a just cause, the non-observance of the requirements of due process before effecting the dismissal leaves the employer liable for nominal damages. (Samar-Med v. NLRC, 2013)  2013)   In Agabon In Agabon v. NLRC NLRC (2004),  (2004), the Court awarded nominal damages amounting to P30K without distinguishing between just and authorized causes. In Jaka Food v. Pacot (2006), Pacot (2006), the Court distinguished between just and authorized causes. It stated that if a just cause for dismissal exists, the nominal damages for non-compliance with procedural due process requirements must be tempered (since it is caused by the conduct of the employee) as compared to an authorized cause. (P30K for just cause; P50K for authorized cause) Industrial Timber v. Ababon (2006), Ababon (2006), further refined Jaka. For authorized causes, if the dismissal was due to business losses, the damages to be awarded should be less compared to a dismissal not due to business losses. The SC also enumerated other factors that may be considered to justify reducing the award of damages: 1. Authorized cause invoked (retrenchment (retrenchment or closure due to losses may warrant lower damages) 2. Number of employees employees awarded 3. Capacity of the employer to satisfy satisfy the award (based on its financial status status as proven by the evidence on record)

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4. Employer’s grant of other termination benefits to the employees  employees  5. Whether there was a bona fide attempt to comply with due process (as opposed to not giving any notice at all). Q: What What limitations do law and jurisprudence juris prudence impose on an employer’s right to terminate services of a probatio nary employee? employee?    A:  A: A  A probationary employee may be terminated at at any time during during the probationary period but only only for just and authorized causes, or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement (Art. 281, LC). In addition, a probationary employee can also be dismissed due to failure to qualify for regular r egular employment, subject to the following conditions: 1. In all cases of probationary probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at the time, he shall be deemed a regular employee.   (Aberdeen Court vs. Agustin, 2005).  2005).   2. Double or successive probation is not allowed. (Holiday Inn Manila vs. NLRC, 1993)  1993)   3. The determination determination of "adequate performance is not always mea measurable surable by quant quantitative itative specification. It is also hinged on the qualitative assessment of the employee's work; by its nature, this largely rests 4.

5.

on the reasonable exercise of the employer's management manage ment prerogative. (Abbott v. Alcaraz, 2014)  2014)   By the very very nature of a probationary employment, the employee needs to know from the very st start art that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. Due process lies in apprising him of the standards against which his performance shall be continuously assessed. Probationary employees are entitled to know the reason for their failure to qualify as regular employees. Failure to inform the employee results in illegal dismissal by the employer. (PNOC employer. (PNOC v. Buenviaje, 2016)  2016)   While it may may be argued argued that ideally employers should immediately inform a probationary employee of the standards for his regularization from day one, strict compliance thereof is not required. The true test of compliance with the requirements of the law is, of course, one of reasonableness. As long as the probationary employee is given a reasonable time and opportunity to be made fully aware of what is expected of him during the early e arly phases of the probationary period, the requirement of the law has been satisfied. satisfied. (Enchanted Kingdom v. Verzo, 2015)

Q: What What are the procedural due process requirements in terminations due to disease?  disease?    A: The twin-notice requirement applies. The first notice indicates the particular ground for dismissal, while the second notice is the notice of termination after being given the opportunity to be heard. Despite the silence of LC and its IRR, the employee should still be afforded procedural due process in termination cases. (Deoferio v. Intel Technology, 2014) Q: Can Can a an n unjustif ied reduction of worki ng days constitu te illegal illegal dismiss al? al?    A: Yes, when an employer committed illegal reduction of work hours, the employer may be held liable for constructive dismissal. An employer's unilateral and arbitrary reduction of the work day scheme significantly reduces employees’ salaries thereby rendering it liable for constructive dismissal. (Intec dismissal. (Intec Cebu v. CA, 2016) Q: What are the other reliefs that are not provided in the Labor Code but are granted in illegal dismissal cases?  cases?    A: The following reliefs are awarded in illegal dismissal cases, other than those granted under Article 279: 1. Award of separation pay pay in lieu of of reinstatement. reinstatement. (Starlight Plastic Industrial Co. v. NLRC, 1989)  1989)  

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2. 3. 4.

5.

Award of of penalty in the form of nominal damages in case of termination termination due to just or author authorized ized cause but without observance of procedural due process. (Agabon, 2004) Award of damages and attorney's fees. (Suaro v. BPI, 1989)  1989)   Award of financial assistance in cases where where the employee's dismissal is declared legal b but ut because of long years of service, and other considerations, financial assistance is awarded. (PLDT v. NLRC, 1988)   1988) Imposition of legal interest on separation pay, backwages, and other m monetary onetary awards. (Univ. of Pangasinan v. Femandez, 2014)  2014)  

Q: What What is constructiv e dismissal?    A:  Constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. (Panasonic Manufacturing v Peckson, 2019). Constructive dismissal occurs when, but are not limited to:  1. Continued employment is rendered impossible or unreasonable, re resulting sulting in an involuntary resignation  2. Demotion in rrank ank or diminution in pay  3. Forced resignation resignation to make it appear that no termination by the employer w was as done (Leonardo v. NLRC, 2000)   Q: What is the test used to determine whether or not an employee has been constructively dismissed?    A:  The test of constructive dismissal is whether a reasonable person in the employee’s position would w ould have  (Mcmer Corp. v. NLRC, 2014).   felt compelled to give up his position under the circumstances circumstances (Mcmer Q: How How different is resignation from cons tructive dism issal?    A: Resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, such that he has no other choice but to disassociate himself from his employment. (Cervantes v. PAL Maritime Corp., 2013) On 2013)  On the other hand, in constructive dismissal, an act of an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment (Hyatt Taxi Services v. Catinoy, 2001) 2001)  

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4. REQUIREMENTS REQUIREMENTS OF LABOR-ONLY L ABOR-ONLY CONTRACTING CONTRACTING Q: What What is labor-only contr acting?  A: This refers to an arrangement where the contractor or subcontractor s ubcontractor recruits, supplies, or places workers to perform a job or work for a principal, and the elements hereunder: 1. The contractor does not have substantial capital; or the contractor o orr subcontractor does does not have

2.

investments in the form of tools, equipment, machineries; and the contractor’s or subcontractor’s employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or The contractor or subcontractor does not exercise the right of control over the work of the employee (D.O. No. 174-17, Sec. 5)

Q: What What are the elements of a legitimate contracting or subc ontracting arrangeme arrangement? nt?    A: (DSOC) (DSOC)   1. The contractor is engaged in a Distinct and independent business and undertakes to perform the job or work on its own responsibility according to its own method; 2. The contractor or subcontractor has Substantial capital and/or investment; 3. The contractor undertakes to perform the job, work or service on its Own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected 4.

with the performance of the work except as to the andbenefits for all of the employees The Service Agreement ensures Compliance withresults all the thereof; rights and 8)   of the contractor or subcontractor under Labor laws. (D.O. No. 174-17, Sec. 8) 

Q: What What is the right to c ontrol?    A: Right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. (D.O. No. 18-A, Sec. 3[i])  3[i])   Q: What What is required for labor-only contr acting to exist?    A: Only one of either (i) substantial capital/investment or (ii) performing activities related to the main business is required. Performing activities directly related to the principal business of the employer is only one of the two indicators that "labor-only" contracting exists; the other is lack of substantial capital or investment. Labor-only contracting exists when any of the two elements is present. (Quintanar, et al. v. Coca-Cola, G.R. No. 210565, 2016)  2016)   Q: What What is substantial capital?  capital?    A: It refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements, machineries, and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or o r service contracted out. (D.O. out. (D.O. No. 18-02, Sec. 5) It also refers to paid-up capital stocks/shares of at least Five Million Pesos (P5,000,000.00) in the case of corporations, partnerships and cooperatives; in the case of single proprietorship, a net worth of at least Five Million Pesos (P5,000,000.00). (D.O. No. 174-17, Sec. 3(i))  3(i))   The law does not require both substantial capital and investment in the form of tools, equipment and machineries. This is clear from the use of the conjunction “or.” (New Golden Builders & Dev’t Corp v. CA, et al., G.R. No. 154715, 2003)  2003) 

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5. RIGHTS OF EMPLOYEES AND OF LABOR ORGANIZATIONS; MEMBERSHIP IN UNIONS Q: What What is the scope of the right to self-organization self-organization und er the Labor Code?  A: 1. Forming, joining, or assisting labor organizations for the purpose of collective bargaining through representatives of their own choosing. 2.

To engage in lawful concerted activities for the purpose of collective bargaining or for their their mutual aid and protection. (Labor Code, Art. 257)

Q: Who may may or may not exercise the right to self-organiz self-organization? ation?    A:  Generally, all employees. Except: 1. Managerial employees 2. Confidential employees in the field field of labor relations 3. Employee-members of cooperatives 4. Religious objectors 5. Employees of foreign embassies, consulates, consulates, international organizations, organizations, and other entities clothed with diplomatic immunity Q: What What are the modes of acquirin g legitimacy for labor organizations?    A: 1. 2.

Registration with the Bureau of Labor Relations (Federation) (Federation) or with the Regional Office (Independent Unions); Chartering or Issuance of a Federation Federation or National Union of of a Charter Certificate

Q: What What are the rights and c onditions of membership und er Art. 250? 250?    A:   POLITICAL RIGHTS

The member’s right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications

DELIBERATIVE AND DECISION-MAKING RIGHTS

The member’s right to participate in deliberations on major policy questions and decide them by secret ballot.

RIGHTS OVER MONEY MATTERS

RIGHT TO INFORMATION

The member’s rights:  rights:   1. Against unauthorized collection of contributions or unauthorized disbursements 2. To require adequate records of income and expenses; 3. To access to financial records; 4. To vote on officers’ compensation; compensation;   5. To vote on proposed special assessments 6. To be deducted a special assessment only with the member’s individual written authorization  authorization  

The member’s right to be informed about:  about:  1. The organization’s constitution and by-laws; by -laws; and 2. The CBA, and about labor laws

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Q: Who Who are prohibited from becomi ng offi cers of labor organizations?  organizations?    A: 1. Non-Employees (Labor Non-Employees (Labor Code, Art. 250[c]); 2. Subversives or those engaged in subversive subversive activities (Labor Code, Art. 250[e])  250[e])   3. Persons who have been convicted of a crime involving moral tu turpitude rpitude (Labor Code, Art. 250[f])  250[f])   Q: What What are the modes of determining an exclusiv e bargaining agent and their requisit es?  es?    A: The following are the modes of determining the exclusive bargaining agent:   a. Sole and and Exe Executive cutive Bargaining Bargaining Ag Agent ent (SEBA) Certification – Certification  – it  it is applicable when there is only one legitimate labor or ganization ganization,, whether it is an independent union or a chartered local, in a given bargaining unit. Otherwise, the same shall be referred directly to the election officer for the conduct of certification election. (D.O. 40-1-15)  40-1-15)  b. Consent Election – Election – when  when two or more contending unions voluntarily and mut ually agree to hold t he certification election  election   among themselves, with or without the participation and supervision of the DOLE, to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. (IRR of LC, Sec. 1[b], Rule 1, Book V)   c. Certification Election – Election – refers  refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiations (IRR of LC, Sec. 1[h], Rule I, Book Bo ok V).  V).   d.

e.

Run-off Elections – Elections – when  when majority of the bargaining unit voted in the election where at least 3 choices, including the "no union” union” choice. choice. However, not one of the choices obtained a majority of the valid votes cast. A run-off election may thus be held when the total number of votes for all contending unions is at least 50% of the number of votes cast. All matters relating to challenged votes must be resolved. (D.O. No. 40-03, Sec. 1 (ss), Rule 1)  1)  Re-run Elections – Elections – may  may be held in two instances: a) when breaking a tie between contending unions, including “no union” union” and one of the unions and b) when a failure of election has been declared

Q: Are ambulant, intermittent, and itinerant workers the only workers who may form and join workers’ association associations? s?    A: No. The last sentence of Art. 253 broadens the coverage of workers who can form or join a workers ’   association, and is not exclusive to ambulant, intermittent and itinerant workers. The right to selforganization is not limited to unionism. Workers may also form or join an association for mutual aid and protection and for other legitimate purposes. (Samahan ng mga Manggagawa sa Hanjin v. BLR, 2015).  2015).   Q: Does Does the pendency of a petition for t he cancellation cancellation of u nion registration bar the conduct o f the certification election?  election?    A:   No. The pendency of the cancellation of union registration brought against the labor organization applying for the certification election should not prevent the conduct of the certification election. Rationale:  At the time tthe he union filed its petition for certification election, it still s till had the legal personality to perform such act absent an order directing it cancellation. (Legend International Resorts Ltd. V. Kilusang Manggagawa, 2011).  2011).  Q: Are the non-submission of financial statements by a registered union or failure to maintain membership representing 20% of the appropriate bargaining unit throughout its lifetime valid ground for cancellation of its registration?    A: No. The 20% minimum membership is required only during union registrat registration ion and need not be maintained through the existence of the union. (MARIWASA v Secretary, 2009).  2009).   The failure to submit periodic financial statements is no longer a ground for cancellation (The Heritage Hotel Manila, 2011).  2011).  

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Q: Can Can a member of a un ion, other than the bargaining age agent, nt, be made to pay agency fees fees in addition to their respective union dues?    A: Yes. The bargaining agent which successfully negotiated the CBA with the employer is given the right to collect a reasonable fee, called “agency fee” from its non-members its  non-members who are employees covered by the bargaining unit being represented by the bargaining agent (in case they accept the benefits under the CBA). It is called “agency fee” because by availing of the benefits of the CBA, they, in effect, recognize and a nd accept the bargaining union as their “agent” as well. (Art. 259(4), Labor Code). No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA. (Del Pilar Academy v. Del Pilar Academy Employees Union, 2008)  2008)  The employee's acceptance of benefits resulting from a collective bargaining agreement  justifies the the deduction deduction of of agency fees from from his pay and the union's union's entitlement entitlement th thereto. ereto. (Holy Cross of Davao College v. Joaquin, 1996)  Q: What What are the proc edural requirements requirements f or valid strike?    A: The procedural requirements for valid strike are: 1. Notice of strike strike or lockout - filed with the DOLE DOLE at least 30 days before the intended date or 15 15 days in case of ULP; 2. Cooling off period - 30 days for bargaining deadlock strikes, 15 days for U ULP LP strikes; Dispensed with 3. 4. 5.

if ULP amounts to union busting; Notice of meeting meeting for strike or lockout lockout vote to the N NCMB CMB - at least 24 24 hours before the conduct conduct of said meeting Conduct and results of strike or lockout vote reported reported to the NCMB; and 7-day strike ban observed.

These requirements are mandatory. Non-compliance by the union will render the strike illegal. Open voting is strictly prohibited (HSBC prohibited (HSBC v NLRC, 2016). Further, non-compliance with these procedural requirements negate the claim of good faith on the part of the striking union. Q: Distingui Distingui sh an order of reinstatement reinstatement issued by the Labor Arbiter and assumption of jurisdic tion and certification orders is sued by the SO SOLE. LE.    A:  A: An  An order order of reinstatement reinstatement issued issued by by a Labor Arbiter to an illegally dismissed employee pursuant to Article 294 of the Labor Code is immediately im mediately executory. It is in the nature of a return-to-work order. On the other hand, assumption of jurisdiction and certification orders issued by the SOLE involving a labor dispute in an industry is indispensable to the national interest are meant to maintain status quo while the main issue being threshed out. It operates as a return-to-work order. (Manggagawa Komunikasyon v. PLDT, 2017) NOTE:: Such assumption or certification shall have the following effects: NOTE 1. 2.

Automatically enjoining enjoining the intended or impending strike or lockout as as specified in the assumption or certification order, and If one has already taken place at the time of assumption or certification, certification, all striking or locked out employees shall immediately return-to-work and the employer shall Immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. (Art. 278 (g), LC)  LC)  

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6. MANAGEMENT PREROGATIVE Q: What What are the limitations to th e management management prerogative of empl oyers?  A:  As a general rule, an a n employer is free to re regulate, gulate, a according ccording to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of workers (Peckson v. Robinson’s Supermarket Corporation, G.R. No. 198534, 2013)  2013)   The limitations are: 1. Good faith So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. (Ymbong v.  ABS-CBN, G.R. G.R. No. 184885, 184885, 2012) 2012)   2. Gra Grave ve abuse of discr etion The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which the right is exercised. (Tinio v. CA, G.R. No. 171764, 2007)   Law The company’s management management prerogatives are not being unjustly curtailed but duly tempered by the limitations set by law. (Metrolab Industries, Inc. v. Roldan-Confesor, G.R. No. 108855, 2013)  2013)   4. Contract Where the CBA is clear and unambiguous, it becomes the law between the parties and compliance therewith is mandated by the express policy of the law . (Goya v. Goya Employees Union-FFW, G.R. No. 170054, 2013)  2013)   5. Equity/substantia Equity/substantiall jus tice  A line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of employees. (PAL v. NLRC, G.R. No. 85985, 1993)  

3.

Q: What What is the extent extent o f the power to di sciplin e employees? employees?    A: Management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers, pursuant to company rules and regulations (Artificio regulations  (Artificio v. NLRC, G.R. No. 172988, 2010)  2010)    Although the right of employers to shape their own workforce, is recognized, this management management prerogative must not curtail the basic right of employees to security of tenure. (Alert Security Investigation Agency v. Saidali Pasawilan, G.R. No. 182397, 2011)  2011)   Infractions committed by an employee should merit only the corresponding sanction demanded by the circumstances. The penalty must be commensurate with the act, conduct or omission imputed to the employee and imposed in connection co nnection with the employer’s disciplinary authority. (Farrol ( Farrol v. CA, February 10, 2000) Q: What What is the extent of th e power to tr ansfer employee employees? s?    A: The employer has the right to transfer or assign employees from one area of operation to another, or one office to another or in pursuit of its legitimate business interest, Provided there is no demotion in rank or diminution of salary, benefits and other privileges and not motivated by discrimination or made in bad

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faith, or effected as a form of punishment or demotion without sufficient cause. cause . (Westin Phil. Plaza Hotel v. NLRC, G.R. No. 121621, 1999)  1999)   Q: What is a bonus? When does it become demandable?  demandable?    A: The granting of bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. (Producers Bank of the Philippines v. NLRC, G.R. No. 100701, 2001)   2001) It becomes demandable when it was promised by the employer and expressly agreed upon by the parties (as in a CBA). (Lepanto Ceramics v. Lepanto Ceramics Employees Association, G.R. No. 180866, 2010)  2010)   It is also demandable when it is made part p art of the wage or salary or co compensation mpensation of the employee. (Eastern Telecoms v. Eastern Telecoms Employees Union, 2012)  2012)   Q: What What is the rule on change of hours ?    A: Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. So long as such prerogative is exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold such exercise. (Sime Darby Pilipinas, Inc. v. NLRC, G.R. No. 119205, 1998)   Q: What What is a bona fide occupational qualification ?    A: Employment in particular jobs may not be limited to persons of a particular sex, religion, or national natio nal origin UNLESS, the employer can show that sex, religion, or national origin is an actual qualification for performing the job. (Yrasuegi v. PAL, G.R. No. 168081)  168081)  

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7. ILLEGAL RECRUITMENT OF OVERSEAS FILIPINO WORKERS Q: What What is illegal recruitment under the Migrant Workers Act?  A:  Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising adverti sing for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under the Labor Code. (R.A. No. 8042, Sec. 6)  6)   Q: When When is illegal recruitment committed?  A: Illegal recruitment is committed when two elements concur, con cur, namely; (1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either any activity within the meaning of “recruitment and placement” defined under Article 13(b) of R.A. No. 8042, or any of the prohibited practices pr actices enumerated under Article 34 of the Labor Code. (People v. Gutierrez, 422 SCRA 32)  32)   Q: Who are illegal recruiters?  recruiters?    A: 1. Non-Licensee or Non-Holder of Authority The offender commits:

2.

a. Any of the acts defined in Art. 13(b) of the Labor Code as recruitment and placement; b. Illegal recruitment as defined in ¶ 1, Sec. 6 of R.A. No. 8042, or amended; or c. Any of the 14 acts enumerated in Sec. 6 of R.A. No. 8042, as amended Licensed Recruiter or Holder of Authority The offender commits any of the 14 wrongful acts enumerated in Sec. 6 of R.A. No. 8042, as amended (Sto. Tomas v. Salac, G.R. No. 152642, 2012).  2012).  

Q: What What are the kinds of illegal recruitment?    A: 1. Simple Illegal Recruitment Recruitment - committed by a person who is neither a licensee nor a holder of authority; 2. Illegal Recruitment as Economic Sa Sabotage botage - committed by a syndicate; or in large scale, shall be considered an offense involving economic sabotage. (R.A. No. 10022, Sec. 5[m])  5[m])   Q: What are the entitlements of an OFW dismissed without just, valid, or authorized cause?    A: 1. Full reimbursement reimbursement of the placement fee with interest at 12% per annum PLUS 2. His salary salary for for unexpired unexpired portion portion of his employmen employmentt contract. (R.A. No. 8042, Sec. 10)  10)   NOTE: In the case of Serrano v, Gallant Maritime, the Supreme Court ruled that the provision limiting the NOTE: monetary award to “three (3) months for every year of the unexpired term, whichever is less” is unconstitutional. This restriction is still invalid, despite its reinstatement in R.A. 10022 in 2010.The Supreme Court reiterated its finding in Serrano v. Gallant Maritime that limiting wages that could be recovered by an illegally dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of the Constitution.  Constitution.  (Sameer Overseas Placement Agency v. Cabiles, G.R. 170139, 2014)   2014)

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Q: Can a recruitment agency be held solidarily liable for illegal acts committed by the foreign employer/principal after the principal extended the OFW’s contract without the agency’s participation?   participation?  A: For the liability of the agent to attach, it must be proven that the agent knew of and consented to the extension of period of employment. Otherwise, the liability of the recruitment agency shall expire from the termination of the worker's original contract. (Sunace International Management v. NLRC, G.R. No. 161757, 2006)   2006) Q: What What is the solidary liability in illegal recruitment? recruitment?    A:  Migrant Workers Act holds recruitment agencies solidarily liable l iable with the foreign employers for all claims arising from the employment of OFWs. Such solidary liability is anchored on the following documents that an agency is required to submit su bmit as part of its application for a recruitment license:   1. A verified undertaking  undertaking   to assume all responsibilities for the proper use of its license and the implementation of the contracts of employment with the workers it recruited and deployed. 2. An age agency ncy c ontract with ontract  with the foreign employer, empowering it to sue and be sued jointly and solidarily with the foreign principal for any violations of the recruitment agreement and contracts of employment. 3. Cash and surety bonds  bonds   to guarantee compliance with the terms and conditions of employment. (Royal Crown v. NLRC, 1989)  1989)  

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8. REMEDIES REMEDIES (LAB OR STANDARDS VIOLATORS) Q: In In what cases is a petition for certiorari under Rule 65 proper ins tead of a petition for r eview? eview?  A:  The only mode by which a labor case decided by any of the following labor authorities/tribunals may reach the CA is through a Rule 65 petition for certiorari: 1. SOLE (PIDL Tranco v Philtranco) 2. NLRC (St. Martin Funeral Home v NLRC); and 3. Director of BLR in cases decided decided by h him im in his appellate jurisdiction. (Abbott Laboratories v Abbott Laboratories Employees’ Union, 2000)  2000)   Q: What What is th e difference between Art. 128 and 129 (the visito rial and enfo rcement pow ers)?  ers)?    A:    ART. 128  128  NATURE AND SUBJECT OF PROCEEDING  PROCEEDING 

 ART. 129  129 

Nature is inspection; to compel  Adjudication through summary compliance; Enforcement of labor proceedings; Monetary claims; legislation; Offshoots of inspections Initiated by sworn complaints Employees still in service

Present or past employees at the

WORKERS INVOLVED  INVOLVED 

LIMITS  JURISDICTIONAL LIMITS 

OFFICERS DESIGNATED OFFICERS DESIGNATED  

 APPEAL L   APPEA

time complaint is file, provided that no demand for reinstatement No maximum monetary amount for the exercise of enforcement power

Php5,000, no prayer for reinstatement Remedy: Amend and file with NLRC

Secretary of labor or his authorized representative

Regional Director or authorized hearing officer

To Secretary Employment

To NLRC

of

Labor

and

any

Q: What What are the applicable prescriptive prescriptive periods for fili ng the follo wing claims: 1. Money claims arising arising from e employer-employee mployer-employee relations 2. Ille Illegal gal dismissal a and/or nd/or claims for backwages and damages damages due to illegal dismiss al 3. Ille Illegal gal recruitment involvi ng oversea overseas s employment 4. Ille Illegal gal re recruitment cruitment by a syndicate or in large scale involv ing oversea overseas s employment 5. Ille Illegal gal recruitment involvi ng local employment  A: 1. Money claims arising from employer-employee relations relations –  – 3  3 years (Art 306 of Labor Code) 2. Illegal dismissal dismissal and/or claims for backwages and damages due to illegal dismissal – dismissal  – 4  4 years (Art 1146 of New Civil Code) 3. Illegal recruitment involving overseas employment – employment – 5  5 years (Sec 12 of RA 8042) 4. Illegal recruitment recruitment by a syndicate or in large large scale involving overseas employment – employment – 20  20 years (Sec 12 of RA 8042) 5. Illegal recruitment involving local employment – employment – 3  3 years (Art 305 of Labor Code) ————-- end of topic ———— ———— ————--

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D. TAXATION LAW 1. BASIC PRINCIPLES OF TAXATION IN THE CONSTITUTION Q: What What are the three elements elements o f taxation ?  A: (CIS) 1. 2. 3.

It is an enforced proportional C proportional Contribution ontribution from persons and properties. It is Imposed by the State  State  by virtue of its sovereignty. It is levied for the Support of the government. (PCGG v. Cojuangco, 2001)  2001)  

Q: What What are the constitu tional provisi ons directly affecting taxation?  A: The direct constitutional provisions on taxation are: 1. Non-imprisonment for non-payment of poll tax; 2. Uniformity, equitability, and progressivity of taxation; 3. Grant by by Congress of au authority thority to the President to fix fix tariff rates, rates, import a and nd export quotas, etc.; 4. Tax exemption of properties actually, actually, directly, and exclusively used for religious, charitable charitable and educational purposes; 5. Exemption from from taxes of the the revenues and assets of non-sto non-stock, ck, non-profit educationa educationall institutions including grants, endowments, donations or contributions; President’s item-veto item-veto power on appropriation, revenue, tariff bills; Non-impairment Nonimpairment of the Supreme Court’s jurisdiction in tax t ax cases; Power of local governments to create its own sources of revenue and to levy taxes taxes subject to constitutional and congressional limitations; 9. Majority voting requirement in connection with the legislative grant of tax exemption; and 10. The provision which mandates that money collected on a tax levied for a public purpose shall be paid out for such purpose only. 6. 7. 8.

Q: Who are the ta tax x exempt entities under under the Philippine Constitution?  A:  A : When a non-stock, non-stock, non-profit educational institution proves that it uses its revenues actually, directly, and exclusively (ADE) for educational purposes, it shall be exempted from income tax, VAT, and Local Business Tax. On the other hand, when it also shows sh ows that it uses its assets in the form of real property for educational purposes, it shall be exempted from Real Property Tax. (CIR v. De La Salles University, 2016). Tax Tax Exempt Entities Under the Constitutio n:  ART XIV SEC 4 (3) (3) 

 ART VI SEC 28(3) 28(3)  

EXEMPT ENTITY 

Non-stock, non-profit educational institution

Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and   all and lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable,, or educational pu rposes charitable rposes  

TAX EXEMPTIO EXEMPTION N GRANTED 

Income tax, custom duties, property tax, VAT, LBT  

Property Tax 

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PROPERTY THAT MUST  All revenues, assets and  All lands, buildings, and improvements, BE ADE  income must be used for used for   religious, charitable, or educational purposes  educational purposes  Q: What is the test to determine whether REVENUES of non-stock, non-profit educational Institutions are exempt from taxes based based on the Constitution ?  A: The test is the actual, direct, and exclusive (ADE) use of the revenues for educational purposes, not the source of said revenues. Thus, when an NSNP educational institution proves that it uses Its revenues ADE for educational purposes, it shall be exempted from income tax, VAT, and LBT. This is known as the utilization rule. (CIR V. DLSU, 2016) Q: ABC, a non-stock, non-stock, no n-profit educational i nstitutio n, receives receives rentals from restaurants/ restaurants/cantee canteens ns and booksto res operating within the campus. Are these re rental ntal earnings taxable?  A: So long as the revenues and income are ar e used actually, directly and exclusively for educational purposes, then said revenues and income shall be b e exempt from taxes and duties. The Constitution categorically states that "all revenues and assets. used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties." To avail of the exemption, the taxpayer must factually prove of the use of income for educational purposes. (CIR v. DLSU, 2016)  2016)   Q: Differentiate taxes from licenses or regulatory fees.  A: TAX

LICENSE FEE

SOURCE

Taxing power

Police power of the State

PURPOSE

Raise revenue

Regulation

OBJECT

Persons, property and privilege

Right to exercise a privilege

 AMOUNT

No limit

Only necessary to carry out regulation

Q: ABC, ABC, a non-stock, non-stock, non -profit educational instituti on, filed an application for a buildin g permit to construct its medical center building in its campus. A Building Permit Fee and a Locational Clearance Fee was assessed by the local government unit. ABC argues that it is exempt from payment of the bu ilding permit fee and locational clearance fee. fee. Is Is ABC cor rect?  A:  No. It is not exempt from the building permit fees and locational clearance fees as these charges are in the nature of regulatory fees and not taxes. A building permit fee is a regulatory imposition highlighted by the fact that in processing an application for a building permit, the Building Official shall see to it that the applicant satisfies and conforms with the approved standard requirements on zoning and land use. The fact that the revenue is incidentally raised does not make the imposition a tax. (Angeles University v. City of Angeles, 2012)  2012)  Moreover, there is no vested right in tax exemption and may thus be modified or withdrawn at will by the granting authority. Hence, whatever rights were granted in the certificates/licenses issued to the locators, the same must yield to exercise of police power as taxation may be made the implement of the State's State's 2007)  police power. (Republic of the Philippines v. Caguioa, 2007) 

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2. INCOME TAX Q: What What is income?  A: Income means the gain derived from capital, from labor, or from both combined, including profits gained from dealings in property or as well as any asset clearly realized whether earned or not. Income may be defined as the amount of money coming to a person or corporation within a specified time, whether as payment for services, interest or profit from investment. It refers to all wealth which flows into the taxpayer other than as a mere return on capital. (R.R 2-40) Q: Who is a non -re -resident sident citizen?  A: The term “non“non-resident citizen” means a Filipino citizen:  citizen:   1. Who establishes to the satisfaction satisfaction of the CIR the fact of his physical presence abro abroad ad with intention to reside therein; 2. Who leaves the the Philippines during the the taxable year to reside abroad either as an immigrant or for employment on a permanent basis; 3. One who works and derives derives income from abroad and whose employment employment thereat requires requires him to be physically present abroad most of the time during the taxable year (183 days); or 4. Who has been previously considered a non-resident citizen and and who arrives arrives in the Philippines at any time during the taxable year to reside permanently in the Philippines Phili ppines with respect to his income derived from sources abroad. (Sec. 22(E), NIRC)  NIRC)   Q: AC, a Canadian Corporation, was authorized to operate as an offline carrier here in the Philippines. Being an offline carrier, it does not have flights originating from or coming to the Philippines and does not operate any airplane therein. AC engaged the services of ALC as its general sales agent in the Philippines? Is AC considered as resident foreign corporation for purposes of regular corpor ate incom e tax? tax?  A: Yes. Jurisprudence has explained that a foreign airline corporation engaged in the business through its local sales agent is considered a resident foreign corporation. This is covered as well by the Foreign Investment Act, which states that “doing business” includes acts which imply a continuity of commercial dealings for commercial gain. One such act is appointing a sales agent herein to continuously sell its tickets. Therefore, AC’s income from the sale of its tickets is considered as income derived from sources within the Philippines and AC should be considered as resident foreign corporation doing business in the Philippines. (Air Canada v. CIR, 2016) Q: What is the difference between income and capital?  A: Income is distinct from capital. Income means all the wealth, which flows into the taxpayer other than a mere return on capital while capital is a fund or property existing at one distinct point in time, ti me, while income denotes a flow of wealth during a definite period of time. Income is gain de derived rived and severed from capital. (Chamber of Real Estate and Builder’s Association, Inc. v. Romulo, 2010)  2010)   The essential difference between capital and income is that capital is a fund; income is a flow. (Madrigal v. Rafferty, 1918)  A simple example would be b e an employee receives wages and reimbursement for business expenses. In this case, the wages are taxable as these constitute co nstitute income while reimbursement is a mere return of capital.

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Q: Discuss Discuss t he tests in determining whether income is earned for tax purposes.  A: REALIZATION PRINCIPLE

Income is recognized when both of the following conditions conditi ons are met: 1. The earning is complete or virtually complete; and 2. An exchange has taken place

ECONOMIC BENEFIT TEST

 Anything that benefits a person materially or economically in whatever w way ay is taxable under the law. ●  However, note that that under this jurisdiction, mere increase increase in the value of property without actual realization (such as sale or disposition) is not taxable.

 ALL  AL L EVENTS TEST

The “all events test” is used in order to determine when an accrual of income or expense is permitted. The accrual of income and expense is permitted when the “all“all-events test” has been met. This test requires:  requires:   1. Fixing of a right to income or liability to pay; and 2. The availability of the reasonable accurate determination of such income or liability (CIR v. Isabela Cultural Corporation, 2007)

Q: Discuss the sour ce rule of income taxation as pro vided in the NIRC NIRC..  A: Only resident citizens and domestic corporations are subject su bject to tax on their worldwide (within and without the Philippines) income. All other individual and corporate taxpayers are only subject to tax on their Philippine-sourced income. (Section 23, NIRC)   Q: Discuss the source rules to determine whether income is derived within or without the Philippines.  A: INCOME Interests

TEST OF SOURCE OF INCOME Residence of debtor From domestic corporation - income within the Philippines If received from a foreign corporation Income within if more than 50% of the gross income of such foreign corporation for the 3 years prior was derived from sources within the Philippines.

Dividends

Extent: Phil. Gross Income x Dividend = income within Total Gross Income Income without, if less than 50% of the gross income of such foreign corporation for the 3 year prior period was derived from sources within the Philippines. Therefore, nothing of such dividends forms part of income within.

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Services Services (compensation for labor/personal labor/pe rsonal services) Rentals Royalties

Gain Ga in on sale of real property

Place of performance of service

Location of the property/interest in such property Place of use or location of intangibles (such as patents, trademarks, etc.) giving rise to royalties Location of property

Gain on sale of personal property Gain other than shares of stock in a domestic corporation purchased in one country and sold in another

Place of sale

Gain Ga in on sale of s hares of stock in a domestic corporation

Philippines regardless of place where sold (Sec. 42, NIRC)

Q: What What are the requirements requirements for the s ale of princip al residence to be exempt from c apital gains tax?  A: The following must be met: 1. The proceeds must be fully utilized in acquiring or co constructing nstructing a new principal residence within 18 calendar months from date of disposition; 2. The taxpayer shall shall notify the CIR within 30 days from the date of sale sale or disposition of his intention intention to avail of tax exemption; and 3. This exemption exemption can only be availed of once every 10 years. (Sec. 24(D)(2), NIRC)  NIRC)   Q: What What are the exclusions fro m gross income for r eside esident nt citizens?  A: The exclusion from gross income are: (L are:  (LPG-T-CREM PG-T-CREM))  1. Proceeds from L ife insurance; 2. Amount received by by insured as a return of Premium; 3. Gifts, bequests and devises; 4. 5. 6. 7. 8.

Income exempt under t reaty; Compensation for injuries or sickness; Retirement benefits pensions gratuities etc.; Separation pay without the ffault ault o off the Employee-taxpayer; Miscellaneous items; a. Income derived by foreign government government from from investment investments s in the the Ph Philippines; ilippines; b. Income derived by by the government or its political subdivisions; c. Prizes and awards awards (selected without any action action and n no o substantial future services); d. Prizes and awards in sanctioned sports competition; e. 13th month pay and other benefits not exceeding P90,000; f. GSIS, SSS, Medicare and other contributions; g. Gains from from the sale sale of bonds, debentures and other other certificates of indebtedness w with ith maturity of more than 5 years; and h. Gains from redemption of shares in mutual fund. (Sec. 32(B), NIRC)  NIRC)  

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Q: What are deductible expenses?  A:  These are included in the gross income but are later deducted to compute the net income or taxable income. To be deductible, they must be ordinary and necessary to the trade, business, or profession. Generally, these are: 1. Business expenses 2. Interest 3. Taxes 4. Losses 5. Bad debts 6. Depreciation 7. Donation 8. Research & Development 9. Pension Trusts (Section 34, NIRC)  NIRC)   Q: What are the requirements to deduct business expenses    A:  There are five requirements for business expenses to be deductible: 1. It must must be ordinary and necessary trade, trade, business, or professional expenses; 2. It must be paid or incurred; 3. It must be substantiated; 4. It must not be be illegal or against against public policy; It must have been subjected to withholding if required. (Section 34 (A)(1), NIRC; CIR v. Isabela Cultural Corporation, 2007)  Q: Distinguish exclusions from deduction s.  A: Exclusions from gross income are actually income earned by the taxpayer but are not taxable as income because of the exemption exemption provided for by law or by tax treaties. treaties. Deductions from gross income are are the expenses and other allowable deductions as provided for by law which are incurred for engaging in trade or business or exercise of profession. Q: What is the net operating loss carryover (NOLCO)? When is it allowed?  A: Net operating loss shall mean the excess of allowable deductions over gross income of the business in a taxable year. The net operating loss of the business for any taxable t axable year immediately preceding the current taxable year, which had not been previously offset as deduction from gross income, shall be carried over as a deduction from gross income for the next 3 consecutive taxable years immediately following the year of such loss.  Any net loss incurred, however, in a taxable year during which the taxpayer was exempt from income tax shall not be allowed as a deduction. (Sec. 34(D)(3), NIRC) Q: When When can do nations to a qualified NG NGO O donee-instituti donee-instituti on be deductibl e?  A: Donations can be deductible provided that the donee’s donee’s administrative  administrative expenses shall not exceed 30% of its total annual expenses (Sec. 34(H)(2)(c), NIRC). Q: For For contr ibutions n ot deductible in full, what is the limit of the amount deductible?  A: For individuals: NOT more than 10% of the taxable income before deducting the charitable contributions. For corporations: NOT more than 5% of the taxable income i ncome before deducting the charitable contributions.

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Q: Discuss OSD for general professional partnerships (GPPs)  A:  A: A  A GPP GPP and its partners partners may avail of the OSD only once - either either by the G GPP PP or by th the e partner partners s comprising the GPP. If the GPP avails of the OSD, the partners partners may no longer claim any expenses. However, if the GPP avails of the itemized deduction, the partners may still claim cl aim itemized deduction but limited only to the items that are not claimed as deductions by the GPP. (Sec. 34(L), NIRC, as amended by TRAIN)  Q: How How shall the income tax on the follow ing indiv idual's taxable income be computed:  A:  A: According  According to Section 24 (A)(2) of th the e NIRC:  IF pure compensation income earner, THEN apply graduated rates; B. B. IF  IF self-employed, or professional, THEN 1. 2.

IF gross sales/receipts do NOT exceed exceed P3,000,000, THEN THEN OPTION to be taxed with with either (a) 8% tax on gross sales or receipts OR (b) the graduated g raduated rates IF gross sales/receipts sales/receipts exceed P3,000,000, THEN graduated rrates ates and VAT

C. IF mixed income earner THEN 3.

For income from from compensation, apply apply graduated graduated rates, rates, AND

4.

For income from from business or practice practice of profession, IF gr gross oss sales/receipts do NO NOT T exceed P3,000,000 THEN OPTION OPTION to be taxed with either   8% tax on gross sales or receipts OR,   the graduated rates IF gross sales/receipts exceed P3,000,000, THEN graduated rates and VAT •

•

NOTE: If a mixed income earner opts for the 8% for income for business or profession, NOTE: p rofession, he is not allowed to deduct P250,000 from his gross sales or receipts. Q: Mr. Mr. Wow, a minimum w age earner, earner, works for HELLO HELLO Inc. He He is no t engaged in bu siness nor has any other source of income other than his employment. For 2019, Mr. Wow earned a total comp ensation inco me of P135,0 P135,000. 00. He contri buted to the SSS SSS,, Philhealth, Philhealth, and HDMF HDMF amou amou ntin g to P5,000 P5, 000.00 .00 and has received 13th mo nth p ay of P11,0 P11,000. 00. He received additio nal pay of P14 P140,0 0,000 00 which consists of the overtime pay- P80,000.00, night shift differential- P30,000,00, hazard payP15,000,00, and holiday pay- P15,000.00. Is Mr. Wow tax exempt?  A: Yes, Mr. Wow is tax exempt since he is a minimum income earner and such exemption extends not just j ust to his basic pay but also to his holiday holi day pay, overtime pay, night shift differential pay, and hazard pay. (RMC pay.  (RMC 50-2018, Q11) Q: When are proprietary non-profit educational Institutions and proprietary non-profit hospitals exempt exe mpt from Income tax? If they engage engage in for -profit activities, what is the tax implication ?  A: For an institution to be completely exempt from income tax, Sec. 30(E)&(G) of the NIRC requires said institution to operate exclusively for charitable or social welfare purposes. In case an institution i nstitution falling under the said exemption earns income from its for-profit activities, it shall not lose its tax exemption, however, the income it derived from its for-profit activities shall be subject s ubject to income tax at the preferential 10% rate pursuant to Sec. 27(8). (CIR v. St. Luke's Medical Center, 2017) 

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NOTE:  If the gross income from unrelated trade, business or other activity exceeds fifty percent (50%) of NOTE: If the total gross income derived by such educational institutions or hospitals from all sources, the entire taxable income shall be subject to 30%   Q: Discu Discu ss th e taxability of GO GOCC CCs. s.  A: Generally, all GOCCs are taxable, except GSIS, SSS, PhilHealth, and the local water districts. districts . (Sec. 27(C), as amended by TRAIN) Q: When When can an an indiv idual avail of the substituted fili ng of inco me tax returns?  A:  A: An  An individual taxpayer can avail of the substituted filing of service when: (POW) (POW)   1. He receives Purely compensation income, regardless of amount, 2. The income is from only One employer in the Philippines for the calendar year, and 3. The income tax has been Withheld correctly by the said employer . (Sec. 51 (A), NIRC)  NIRC)   Q: What What are the kinds of w ithholdin g tax?  A:

 AMOUNT OF TAX COLLECTED

NEED TO FILE A RETURN

FINAL WITHHOLDING TAX

CREDITABLE CREDITABL E WITHHOLDING TAX

Full and final payment of the income due from the payee on the said income (RR 2-98)  2-98)  

Intended to equal or at least approximate the tax due from the said payee on the said income (RR 2-98)

Payee is not required to file an income tax return for the particular income (RR 2-98)  2-98) 

Income recipient is still required to file an income tax return and/or pay the difference between the tax withheld and the tax due on the income (RR 298)   98)

Finality of the withholding tax is limited only to the payee’s income tax liability on the particular income Does not extend to the payee’s other tax liability on said income

Payor endorses the pertinent Certificate of Creditable Tax Withheld at Source to the payee for the use by the payee against his tax liability at the end of the taxable year.

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3. VALUE-ADDED TAX Q: What What are the e elements lements o f VAT taxable transacti on?  A:  (PSB-PE) (PSB-PE)   1. It involves any Person; 2. There must be a Sale, barter, exchange, lease, rendering of service (including deemed sale 3.

4. 5.

transactions); It must be made in the course of trade or B usiness (except if Importation) including incidental transactions; NOTE:: The rule of regularity, to the contrary notwithstanding, NOTE notwithstanding, services as defined in this Code rendered in the Philippines by nonresident foreign persons shall be considered as being rendered in the course of trade or business. (Section business. (Section 105, NIRC as amended)  amended)   The transaction is done in the Philippines; and It must neither be zero-rated nor Exempt from VAT

Q: Can Can a nonpr ofit organization organization be liable for VAT?  A: Yes, as long as its transactions are vatable. Moreover, the phrase "in the course of trade or business* means the regular conduct or pursuit of a commercial or an economic activity, Including transactions Incidental thereto, by any person regardless of whether or not the person engaged therein is a non-stock, non-profit private organization (irrespective of the disposition of its net income and whether or not it sells exclusively to members or their guests), or government entity. (Section 105, NIRC as amended)  amended)  Q: An HMO HMO com pany receives cash fr om Its cli ents. 80% of these receipts are earmarked to be paid to the doctors who will provide medical services to the HMO's clients. 20% of these receipts are kept by the HMO company as payment for the services it provides its own clients. Which portion should be included in the HMO's HMO's gross receipts that w ill be subject to VAT VAT? ?  A:   Only the 20% should be included in the HMO's gross receipts that will be subject to VAT, Amounts earmarked by an HMO to its medical service providers on behalf of its clients do not form part of its gross receipts for VAT purposes. By earmarking said amounts, the HMO recognizes that it possesses said funds not as an owner but as mere administrator a dministrator of the same. (Medicard Philippines, Inc. V. CIR, 2017)  2017)  Q: What What is the difference between between inp ut and output VAT?  A: INPUT VAT

OUTPUT VAT

The value-added tax tax PAID by a VAT registered person in the course of his trade or business on importation of goods or local purchase of goods or services, including lease or use of property, from a VAT-registered person.

The value-added tax PASSED ON on the sale or lease of taxable goods or properties or services.

From the point of view of the Buyer, this is the VAT shifted by the seller to the Buyer.

From the point of view of the Seller, this is the VAT that the seller is statutorily liable to pay but nevertheless can shift the amount to the buyer.

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Q: Differentiate VAT exempt transactions from zero-rated transactions  A: ZERO-RATED

EXEMPT

Subject to 0% VAT. Does not result in an output

Not subject to VAT. Does not result in an output tax

tax Input tax on purchases of a VAT-registered person with zero-rated sales may be allowed as refund

Input tax on purchases of a VAT-registered person is not allowed to be refunded or credited. (NOTE: Input tax is part of the cost/expense of the buyer)

Persons engaged in zero-rated transactions, being subject to VAT, are required to register

Registration is optional for VAT-exempt persons

Q: Discuss Discuss the Cross-Border doctrine.  A:  It provides that no VAT shall be imposed to form part of the cost of goods destined for consumption outside of the territorial border of the taxing authority, Hence, exports are considered zero-rated while imports are subject to VAT. Purchases destined for consumption within the ECOZONE should be free of VAT. (Coral Bay Nickel Corp. v. CIR, 2016)  2016)   Q: What What is th e period for the CI CIR R to act upon c ases of VAT refund related to zero-rated sales?  A: The TRAIN has reduced the period from 120 days to 90 days. Failure on the part of any official, agent, or employee of the BIR to act on the application within the 90-day period shall be punishable under Section 269 of the NIRC. (Section 112, NIRC as amended)  amended)   Q: What What are the new VAT e exempt xempt tr ansactio ns u nder TRAIN?  A: 1. Sale or lease of goods and services to senior citizens and person persons s with disab disability, ility, 2. Transfer of of property pursuant to Section 40(C) 40(C)(2) (2) of the NIRC, as amended (tax-free exc exchanges); hanges); 3. Association dues, membership fees, fees, and other other assessments and charges collected by homeowners associations and condorninium corporations; 4. Sale of gold to the Bangko Bangko Sentral Sentral ng Pilipinas Pilipinas (BSP); (BSP); 5.

Sale of drugs and medicines prescribed prescribed for diabetes, h high igh cholesterol, and hypertension hypertension

VAT Exempt Exempt transactions Sale or importation : Sale a) Sale or importation importation of agricultural and marine food products in their original state for for human consumption; b) Sale or importation of fertilizers, seeds, seedlings and fingerlings, fish, prawn, livestock and poultry feeds c) Sale, importation, importation, printing printing or publication publication of books books and newspaper or magazines appear appearing ing at regular intervals with fixed prices for subscription and which is not devoted principally to the publication of paid advertisements d) Sale, importation, importation, o orr lease of passenger or cargo vessels and air aircraft craft Sale:

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a) b) c) d) e)

Some sales of cooperatives Export sales by not not VAT-registered persons Sale of gold to the Bangko Bangko Sentral Sentral ng Pilipinas (BSP); (BSP); Sale of drugs and medicines medicines prescribed for for diabetes, high cholesterol, and hypertension Sale of the following real properties: ●  Not primarily held for sale or lease in the ordinary cour course se of trade or business ●  Utilized for low-cost or socialized housing ●  Residential lot valued at P1,9 P1,919,500 19,500 and below, or house and lot and other residential residential dwellings valued at P3,199,200 and below (as amended by RR No. 16-2011)

Importation of; a) Personal and household effects effects of residents residents returning from abroad and non-resident citizens coming to resettle in the Philippines, and of persons coming to settle in the Philippines for their own use b) Fuel, goods and supplies by persons engaged in International shipping or air transport oper operations ations Services: a) Services subject to percentage tax b) Services by agricultural agricultural contract growers growers and milling fo forr others of palay into rice, corn corn into grits and sugar into raw sugar c) Medical, dental, hospital and veterinary veterinary service, except those rendered by by professionals d) Educational services rendered by duly accredited private educational institutions institutions and government educational institutions e) Services rendered pursuant to an employer-employee employer-employee relationship relationship f) Services rendered by regional or area HQ established in the PH by multinational multinational corporations which do not earn or derive income from the Philippines g) Transport of of passengers by international carriers doing business in the PH PH (RA. 10378) h) Services of banks and other other non-bank financial intermediaries intermediaries such as money changers and pawnshops Others: a) Transactions exempt under international agreements agreements to which the Philippines is a signatory b) Gross receipts receipts from lending activities activities by credit or multi-purpose cooperatives registered registered with the CDA c) Lease of residential units where the monthly rental rental does not exceed P15,000 P15,000 d) Sales to senior citizens e) Sales to PWD PWD o off certain certain goods goods and services f) Transfer of property property pursuant to Section 40(C)(2) of the NIRC, as amended; g) Association dues, dues, membership membership fees, and other assessments and charges collected by homeowners homeowners associations and condominium corporations; Sale or lease of goods or properties or the performance of services other than t he aforementioned aforementioned transactions, the gro ss annual sales and/or r eceipts d o n ot exc eed P3 P3,00 ,000,0 0,000. 00.   Q: Distinguish the refund rules betwee between n unu tilized IInput nput VAT and other taxes.  A: For unutilized input VAT, the administrative claim for refund must be made within 2 years after the close cl ose of the period, the taxpayer may appeal to the CTA within 30 days from receipt of the decision or the Inaction of the CIR. Thus, the appeal to the CTA (judicial claim) may be brought even after the 2 year period. This 90+30 day period is mandatory and jurisdictional. ju risdictional. (Section 112, NIRC) 

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For all other taxes, BOTH the administrative and the judicial judici al claim of refund should be made within 2 yea years rs from the date of payment of tax. (CIR tax.  (CIR v. Mindanao Geothermal, 2014)  2014)  Q: What What are the requisites for a valid claim of VAT refund o n unu tilized input VAT on ze zero-rate ro-rated d sales?  A: 1. Taxpayer is VAT-registered; 2. Taxpayer is engaged in zero-rated zero -rated or effectively zero-rated sales; 3. Input taxes: a) not transitional input taxes b) Unutilized c) Attributable to zero-rated or effectively zero-rated sales; 4. The administrative claim is filed within 2 years after the close of the taxable quarter when such sales were made. (Luzon Hydro Corporation v. CIR. 2013)  2013)   Q: When the 90-day period lapses, and there is inaction on the part of the CIR, may a taxpayer opt instead to await a decision from t he CI CIR? R?  A: No. When the 120-day (now 90 days) period lapses and there is inaction on the part of the CIR, they must no longer wait for it to come up with a decision thereafter. The CIR's inaction is the decision itself. It is already a denial of the refund claim. Thus, the taxpayer must file an appeal within 30 days from the lapse of the 120-day (now 90 days) waiting period. (Rohm Apollo Semiconductor Phil, v. CIR, 2015)

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4. DONOR’S DONOR’S TAX  TAX Q: What What is the tax implication of t he renunciation by an heir of his /he /herr inheritance?  A: Based on Sec 11, RR 2-2003:   TAX  SUBJECT TO DONOR’S TAX 

NOT SUBJECT TO DONOR’S TAX  TAX  

SUBJECT TO DONOR’S TAX  TAX 

Renunciation by the surviving spouse of his/her share in the conjugal partnership or absolute community after dissolution of the marriage in favor of the heirs  heirs   General renunciation by an heir, including the surviving spouse, of share in the hereditary estate left by the decedent  decedent   Renunciation by an heir, including the surviving spouse, of share in the hereditary estate to a specified and Identified heir to the exclusion or disadvantage of the other co-heirs  co-heirs  

Q: Are ele election ction campaign contr ibutions s ubject to Donor's tax?  A: Election campaign contributions to a candidate, political party or coalition co alition of parties for campaign is not subject to donor's tax provided that the following requirements are complied with: (R-U) (R-U)   1. Filing Returns of contributions with the COMELEC as required under the Omnibus Election Code and 2. Utilizing the entire contribution to cover the expenditure ex penditure for electoral campaign, NOTE: Any unutilized NOTE: Any unutilized portion portion of such contribution contribution forms part of the gross income of the recipient-candidate. (Sec. 2, RR 7-2011)  Q: Are transfers transfers for less than adequate and and full co nsideration subject to Donor' s tax?  A: Yes. Generally, they are subject to donor's tax. However, TRAIN now provides that a sale, exchange, or other transfer of property made in the ordinary course of business will be considered as made for an adequate and full consideration in money or money's worth, thus, not subject to donor's tax, # the transaction is; (1) bona fide; (2) at arm's length; and (3) free from any donative Intent (Sec. 100, NIRC as amended by TRAIN)  TRAIN) 

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5. REMEDIES Q: What What are the pow ers of th e C Comm omm issi oner o f Internal Revenue ((CIR CIR)? )?  A: CIR has the power to interpret tax laws, decide (assessment/refund) cases, obtain information, summon/examine, take testimony, testimony, examine returns, and make findings based on best evidence evidenc e obtainable if the taxpayer fails to submit required documents. The Commissioner also has the power to conduct inventory-taking surveillance, prescribe presumptive gross sales and receipts, prescribe real property values, inquire into bank deposits, accredit and register tax agents, and in some instances, terminate taxable period. (Sec. 4 to 8, NIRC)  Q: What are the requisites for valid assessment?    A: 1. It must must have been issued within within the prescriptive prescriptive period for the issuance of assessment assessment not notices; ices; 2. As a general rule, it may be issued issued only after a pre-assessment notice notice (PAN) has been served upon the taxpayer; 3. There is final demand for payment; 4. It shall state, in writing, the law and the facts on which the assessment is made made (NIRC, Sec. 228); and 228);  and 5. The assessment assessment must must be served on and received by the taxpayer (CIR v. Pascor Realty & Dev’t Corp, G.R. No. 123895, 1999)  1999)   Q: What What are the prescriptive periods f or making assessments of internal revenue ta taxes? xes?  A: 1. Three (3) years from the last day within which to file a return or from the time when the return was actually filed, whichever is later (Sec. 203, NIRC); NIRC); 2. Ten (10) years from discovery of failure to file the tax return or discovery of falsity or fraud in the return (Sec. 222(a), NIRC); NIRC) ; or 3. Within the period agree agreed d upon between the government and the taxpayer where there is a waiver of the prescriptive period of the th e assessment. (Sec. 222(b), NIRC)  NIRC)  Q: When When is th e date of mailing c onsidered the date when assessment assessment is m ade for the purp ose of determining dete rmining if made within the prescriptive period?    A:  A: An  An assessment is deemed made when notice to this effect is released, mailed or sent to the taxpayer. It is not required that the notice be received by the taxpayer within the prescribed period. But the sending of the notice must clearly be proven. (Basilan Estate v. CIR, G.R. No. L-22492, 1967)   Q: May the period of assessment be extended?  A: Yes. Before the expiration of the 3-year prescriptive period, both the CIR and the taxpayer may agree in writing to extend the period of assessment. The period so agreed upon may be further extended by subsequent written agreement made before the expiration of the period previously agreed upon. (Section 222(b), NIRC) Q: What What are the requirements of a valid waiver of the statute of limitations ?  A: To be valid and binding, bin ding, a waiver must comply with the following requirements:  1. The waiver waiver must be in the proper form prescribed prescribed by the Revenue Memorandum Order or Circular. The expiry date of the period agreed upon to assess/collect the tax after the regular 3-year period of prescription should be indicated.

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2. The waiver must be signed signed by the taxpayer himself or his duly authorized representative. representative. In the case of a corporation, the waiver must be signed by any of its responsible officials. In case the authority is delegated by the taxpayer to a representative, such delegation deleg ation should be in writing and duly notarized. 3. The waiver should be duly duly notarized. 4. The CIR or the revenue official official authorized by him must sign the waiver indicating that the BIR has accepted and agreed to the waiver. The date of such acceptance by the BIR should be indicated. However, before signing the waiver, the CIR or the revenue official authorized by him must make sure that the waiver is in the prescribed form, duly notarized, and executed by the taxpayer or his duly authorized representative. 5. Both the date of execution by the taxpayer and date of acceptance by the Bureau Bureau should be before the expiration of the period of prescription or before the lapse of the period agreed upon in case a subsequent agreement is executed. (CIR v. Kudos Metal Corporation, G.R. No. 178087, 2015 citing RMO 20-90) 20-90) The general rule is that a defective waiver cannot extend the prescriptive period. However, take note that when the taxpayer is also guilty of causing defects in the waiver (i.e., in bad faith), the waiver shall still be considered valid and shall thus serve to extend the period to assess and/or collect. (CIR v. Next Mobile, Inc., G.R. No. 212825, 2015)   NOTE: RMO 14-2016 and RMC 141 - 2019 has changed and relaxed the requirements of a waiver of the statute of limitations. There is no strict format of waiver – waiver  – the  the taxpayer may utilize any form with no effect on its validity. Further, notarization is only optional and the date of acceptance by the BIR Officer is no longer required to be indicated for the waiver’s validity.  validity.  HOWEVER,  such issuances contravene existing jurisprudence on the requirements of valid waiver. As HOWEVER,  stated in CIR v. Kudos Metal Corporation, a waiver of the statute of limitations, being a derogation of the taxpayer’s right to security against prolonged and unscrup u nscrupulous ulous investigations, must be carefully and strictly construed. The SC's ruling as provided above is based on Sec. 222(b) of the 1997 NIRC which describes a waiver as an agreement in writing by both the CIR and the taxpayer. Both RMO 14-2016 and RMC 141141 2019 have for their premise that a waiver is a unilateral undertaking which contravenes the law and  jurisprudence.  Q: ABC Bank executed two (2) Waivers of the Defense of Prescription covering internal revenue taxes due for the years 2012 and 2013, extending the period of the BIR to assess up to December 31, 2017. 2017. A Formal Letter of Demand was iss ued by th e BIR whi ch w as protest ed by ABC Bank. ABC received receive d another Formal Letter of Demand with a reduced assessment whi ch was paid by ABC on the same day day except for two oth er taxes. ABC argues that the waivers waivers it executed were not valid because it was not signed or confor med to by the CI CIR. R. Are the waivers valid?  A: Yes. Partial payment of the assessment issued within the extended period to assess as provided in the Waiver of Defense of Prescription is an implied admission of the validity of the waiver. (RCBC v. CIR, GR No. 170257, 2011)  2011)   Nevertheless, ABC Bank did not waive the defense of questioning the remaining tax deficiencies. A taxpayer is not precluded from impugning legality of o f waiver even though the taxpayer paid the assessment for a tax type (e.g., income tax) where TP continued to assert as sert prescription for another tax type (e.g., VAT). (CIR v. Standard Charterered Bank, G.R. 192173, 2015)

 

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Q: When When is the running of the period of prescript ion suspended?  A: It is suspended when: (P-R-C, N-O) 1. The CIR was Prohibited from making the assessment assessment or beginning distraint/levy or a proceeding in court for sixty (60) days thereafter; 2. Taxpayer requests Reinvestigation which is granted by the CIR;(China CIR; (China Bank Corporation v. CIR, G.R. No. 172509, 2015)  2015)   3. Taxpayer Ca Cannot nnot be located in address; address ; (CIR v. BASF Coating, G.R. No. 198677, 2014) 4. A warrant warrant of distraint and levy is served (not only issued) and and No property could be found ; 5. Taxpayer is Out of the Philippines. Philippines . (Sec. 223, NIRC) Q: What What are the remedies available to a taxpayer i n case of: a. Denial of prot est; and b. Ina Inaction ction by the Commissioner’s Commissi oner’s duly authorized representative?  A: a. If the protest is denied, in whole or in part, the the taxpayer may either: i.  Appeal  Ap peal to the CTA within 30 days from date of receipt of decision; or ii. Elevate protest through request for reconsideration to the Commissioner within 30 days from date of receipt of decision. b. If the protest protest is not acted acted upon within 180 days days from the date of filing protest (reconsideration) (reconsideration) or from the date of submission by the taxpayer of required documents (reinvestigation), the taxpayer may either: i.  Appeal  Ap peal to the CTA within 30 days after the expiration of the 180-day period; or ii.  Aw ait the f in al d eci si on of the Commissioner’s duly authorized representative. (RR 18-2013)  18-2013)  Q: What What are the remedies available to a taxpayer in c ase of the inacti on of t he CI CIR R on the pro tested assessment?  A: The taxpayer has 2 options, either: 1. File a Pe Petition tition for Review with the CTA within 30 days after the expiration of the 180-day period; or 2.  Aw ait the f in al deci d eci si on of the CIR in the disputed assessment and appeal such final fin al decision to the CTA within 30 days after the receipt of the copy of such decision. NOTE:: These options are mutually exclusive and resort to one bars the application NOTE applicati on of the other. (Lascona other.  (Lascona Land v. CIR, GR No. 171251, 2012) Q: What is the difference between Preliminary Assessment Notice, Final Assessment Notice and Finall Decision on Disputed Assessment? Fina  A:  

PAN

It is a communication issued by the Regional Assessment Division or by the Commissioner or his duly authorized representative informing the taxpayer who has been audited of the findings of the Revenue Officer following the review and evaluation of these findings. It shall be in writing and shall show in detail the facts and the law, rules and regulations or jurisprudence on which the proposed p roposed assessment is based; otherwise, the assessment is void. (Sec. 228, NIRC; RR No.18-13)

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FAN

It is a declaration of deficiency taxes issued to a taxpayer who fails to respond to a PAN within the prescribed period, or whose reply is found to be without merit. Like the PAN, shall be in writing and shall show s how in detail the facts and the law, l aw, rules and regulations or jurisprudence on which the proposed assessment is based; otherwise, the assessment is void. (RMC No. 18-13)

FDDA

It indicates the decision of the Commissioner of Internal Revenue or his duly authorized representative and it shall state the facts and the law, rules and regulations or jurisprudence on which the decision is based; otherwise, it is void. (RMC No. 18-13)

Q: A Final Assessment Notice was issued by the BIR against taxpayer A. The assessment only contained a tabulation of the deficiencies and not hing mor e. Is the asse assessment ssment valid?  A: No. Under Section 228 of the NIRC, the taxpayer shall be informed in wr iting of the law and facts facts on which the assessment was made otherwise the assessment is void. (CIR v. United Salvage and Towage (Phils.), Inc., G.R. 197515, 2014). Q: What What is the effect effect if the PAN was not is sued prior to the FAN FAN? ?  A: If the PAN is not issued before the FAN and the taxpayer only received the latter, it is tantamount to denial of due process. process . The taxpayer must be informed of the facts and laws upon which the assessment is made. It is not merely a formal requirement but a substantive one. However, the law recognizes several exceptions wherein the PAN need not be issued. (CIR v. Metro Star, GR No. 185371, 2010) 2 010)   Q: What What acts of the BIR Commissioner are considered denials of protest w hich may serve as a basis for appeal to the Court of Tax Appeals?  A: 1. Filing by the BIR of a civil suit for collection of the deficiency tax is considered a denial of the request for reconsideration. (CIR v. Union Shipping Corporation, GR No. L-66160, L -66160, 1990) 1990)   2.  An indication to the taxpayer by the C Commissioner ommissioner “in clear cl ear and unequivocal language” of his final denial on the issuance of the warrant of distraint and levy . The subject of appeal is the final decision, not the warrant of distraint. (Advertising Associates Inc. v. CA, G.R. No. L-59758, 1984) 19 84)   3. 4.

5.

A BIR demand demand lett er sent to the taxpayer after his protest of assessment notice is considered as the final decision of the Commissioner on the protest. (CIR v. Ayala Securities, G.R. No. L-24985, 1976) 197 6)   A letter of the BIR Commissioner Commissioner reiterating to a taxpayer his previous demand to pay an assessment is considered a denial of the request for reconsideration or protest and is appealable to the CTA. (CIR v. Isabela Cultural Corp., G.R. No. 135210, 2001)  2001)   Final notice before seizure considered as Commissioner’s decision on taxpayer’s request for reconsideration, when the taxpayer received no other response. (CIR v. Isabela Cultural Corp., G.R. No. 135210, 2001)  2001)  

Q: What What are the implications after a crim inal convictio n for t ax evasion? evasion?    A: Under the Revised Rules of the Court of Tax Appeals (RRCTA), the civil action filed by the petitioner to question the FDDA is not deemed instituted with the criminal case for tax evasion. The taxpayer's obligation to pay the tax is an obligation that is created by law and does d oes not arise from the offense of tax evasion, as such, the same is not deemed instituted in the criminal case. What is deemed instituted with the criminal   relative to the criminal case. The remedy action is only the government's recovery of the taxes and an d penalties

of the taxpayer to appeal the disputed assessment is not deemed instituted with the criminal case.  

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Q: What What are the requisites for fili ng a claim for refund?    A: 1. Necessity of written written claim  claim for refund; Exceptions: No written claim is needed   a. A return return filed showing showing an overpayment shall be considered as a written written claim for credit or re refund fund (NIRC, Sec. 204[C])  204[C])   b. On the face of the return upon which which the pa payment yment was made, such payment appears clearly to have been erroneously paid (NIRC, Sec. 229)  229)   2. Claim must contain a categorical demand demand for  for reimbursement (Bermejo v. CIR, G.R. No. L-3029, 1950); 1950); and 3. Filing of administrative claim for refund and and the  the suit/proceeding before the CTA both within 2 years from date of payment regardless of any sup ervening cause. cause.   NOTE: The suit may be maintained whether or not such tax/penalty/sum has been paid under protest; If proven that the entity is tax exempt, then the previously paid tax can be refunded but the claim is still subject to the prescriptive period of 2 years. (CIR vs. Manila Electric Company, G.R. No. 181459, 2014)   Q: May May a withholdin g agent file a claim for tax refund ?  A: Generally, the person entitled to claim a tax refund is the taxpayer. However, if the taxpayer does not file the claim, the withhol ding agent may file the same.  A withholding agent has a legal right to file a claim for refund based on the following reasons: a. He is considered a taxpaye taxpayer  r , as he is personally liable for the withholding tax as well as for deficiency assessments, surcharges, and penalties, should the amount withheld be finally found to be less than the amount that should have been withheld. b. As an agent of the taxpayer, his authority authority to file the income tax return and remit remit the tax withheld to the government includes the authority the authority to file a claim for refund and to bring an action for recovery of such claim. NOTE: While the withholding agent has the right to recover the taxes erroneously or illegally collected, he NOTE: nevertheless has the obligation to remit the same to the principal taxpayer under the principle of unjust enrichment. (CIR enrichment.  (CIR v. Smart Communications, G.R. Nos. Nos. 179045-46, 2010) Q: Who Who has the jurisdic tion over a special civil action for certiorari assailing an interlocutory order issued by the Regional Trial Court (RTC) in a local tax case?  A: The Court of Tax Appeals has jurisdiction. Section 1, Article VIII of the 1987 Constitution provides that  judicial power shall s hall be vested in one Supreme Court and in such lower courts as may be established by law and that judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. On the strength of the above constitutional provisions, it can be fairly interpreted that the power of o f the CTA includes that of determining whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory order in cases falling within the exclusive appellate jurisdiction of the tax court. co urt. It, thus, follows that the CTA, by constitutional mandate, is vested with No. jurisdiction issue writs of certiorari in these cases (CA Casecan Water v. Province of Nueva Ecija, G.R. 196278,to2015)

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Q: Is a prior MR/ Motion for new trial necessary for the CTA En Banc to take cognizance of an appeal?  A: Yes, Section 1, Rule 8 of the Revised Rules of the CTA states: “the petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely motion for reconsideration or new trial with the Division.” (Asiatrust Development Bank v CIR, G.R. Nos. 201530 & 201680-81, 2017) Q: Under Under dis pute is th e V VAT AT assessment made by th e BIR against th e sale of properti es made by a GOCC. The latter paid the tax under protest and subsequently filed with the Department of Justice a petition for adjudication of dispute. Are tax assessment disputes solely between government agencies age ncies and offices, includ ing GOCCs, GOCCs, fall under the juri sdiction of the Secre Secretary tary of J ustice?  A: Yes. Under PD 242, all disputes and claims solely between government agencies and offices, including GOCCs, shall be administratively settled or adjudicated by the Secretary of Justice, the Solicitor General, or the Government Corporate Counsel, depending on the issues and government agencies involved. (Power Sector Assets and Liabilities Management Corporation vs. Commissioner of Internal Revenue G.R. No. 198146, 2017) Q: What What is the jurisdic tion of the Court of Tax Appeals?  A: JURISDICTION OF CTA IN DIVISION

JURISDICTION OF CTA EN BA NC

Exclusive original or appellate jurisdiction to review by appeal: 1. Decisions of the CIR in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the 1997 Tax Code or other laws administered by the BIR. 2. Inaction by the the CIR in cases cases involving: a. Disputed assessments b. Refunds of internal revenue taxes, fees or other charges or penalties in

Exclusive appellate jurisdiction to review by appeal: Decisions or resolutions on motions for reconsideration or new trial: 1. Of the CTA Division in the exercise of its exclusive appellate appellate jurisdicti on on   a. over tax co collection llection cases decided by the RTC in the exercise of their original  jurisdiction involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and penalties is less than P1M;

c. d.

relation thereto, Other matters arising under the Tax Code Other laws administered administered by the BIR where the Tax Code or other applicable law provides a specific period for action.

Exclusive jurisdiction over cases involving criminal offenses: 1. All criminal criminal of offenses fenses arising from from the the Tax Code Code or other laws administered by the BIR where the principal amount of taxes and fees, exclusive of charges and penalties claimed is a. P1M or more more –  – Original  Original Jurisdiction b.

P1M or less or where there is no specified amount claimed – claimed – Appellate  Appellate Jurisdiction

b.

over cases involving cr criminal iminal offenses arising from violations of the Tax Code and other laws administers by the BIR. 2. Of the the CTA Division in the exercise of its exclusive and original jurisdiction a. over tax collection cases; b. over cases involving cr criminal iminal offenses arising from violations of the Tax Code and other laws administers by the BIR. 3. Of the the RTC RTC in the exercise exercise of of the their ir appellate  jurisdiction a. over tax collection cases b. over criminal offenses.

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Exclusive jurisdiction over tax collection cases: 1. Tax collection cases involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and fees, exclusive of charges and penalties claimed is a. P1M or more more –  – Original  Original Jurisdiction 2. Appellate jurisdiction over appeals from the  judgments, resolutions or orders o rders of the RTC in tax collection cases originally decides by them within their respective territorial jurisdiction Q: Does Does the C CTA TA have jurisdic tion over matters involvi ng the consti tutionality of r egulations issued by the BIR?  A: Yes. The CTA has exclusive jurisdiction to determine the constitutionality or validity of tax laws, rules and regulations, and other administrative issuances of the Commissioner of Internal Revenue. The CTA is of the same level as the Court of Appeals and possesses "all the inherent powers of a Court of Justice." (BDO v. Republic, G.R. No. 198756, 2016). The BDO ruling overturned the SC’s pronouncement in British  American Tobacco Tobacco (G.R. No. 163583, 2008), stating that the regular courts have jurisdiction to rule upon the constitutionality of a tax law or a regulation issued by the BIR. BIR.   Q: Is Is an adverse ruling of the Secre Secretary tary of Fina Finance nce in t he exe exercise rcise of i ts pow er of review appea appealable lable to the Court of Tax Tax Appeals?  A: Yes. Review by the Secretary of Finance pursuant to Section 4 of the NIRC, as amended, of a BIR Ruling is appealable to the Court of Tax Appeals. The Court opined the Court of Tax Appeals, albeit impliedly, has jurisdiction over the appeal from the Secretary of Finance’s review of rulings of the CIR as “other matters”  matters”  arising under the NIRC or other laws administered by the BIR. (Philippine American Life and General Insurance Company v. The Secretary of Finance and Commissioner of Internal Revenue, G.R. No. 210987, November 24, 2014; Banco de Oro v. Republic, G.R. No. G.R. No. 198756, 2015) Q: Can Can a ta taxpayer xpayer appeal a decisio n of the CTA divisi on to t he S Supr upr eme C Court ourt ?  A: No. The Supreme Court is without jurisdiction to review decisions rendered by a division of the CTA. The exclusive appellate jurisdiction over the said case is vested in the CTA En Banc. With the enactment of RA 9282, which took effect on 23 April 2004, it elevated the rank of the CTA to the level of a collegiate court, making it a co- equal body of the Court of Appeals. (Duty Free Philippines v. BIR, G.R. No. 197228, 2014) Q: What What court has jurisdicti on to review de decisio cisio ns or resolutions i ssued by the Division Division of t he Court Court of Tax Appeals?  A: CTA En Banc. Jurisdiction to review decisions or resolutions issued by the Divisions of the CTA is no longer with the CA but with the CTA En Banc. This rule is embodied in Section 11 of RA 9282, which provides that: “A “A   party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA En banc.” banc.”   (TFS, Incorporated v. Commissioner of Internal Revenue, G.R. No. 166829, 2010) 20 10)

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Illustration of Remedy from Protest to Supreme Court  

————-- end of topic ———— ————

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CRIMINAL LAW

 

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B. CRIMINAL LAW TOPIC OUTLINE UNDER THE SYLLABUS:

B. CRIMINAL CRIMINAL LA W   A.

Basic Principles a. Mala in se and Mala prohibita b. Generality c. Territoriality d. Prospectivity e. Actus reus, mens rea

f. Pro reo principle Mitiga Justifying, E Exempting, xempting, Mitigating, ting, A Aggravating, ggravating, and Alternate Circumstances Application of Indeterminate Sentence Law Service of Sentence Effect o off Death of the Accused Crimes against Persons Crimes against Property Crimes against Liberty Crimes against Public Interest Republic Act No. 92 9262 62 (Anti-Violence (Anti-Violence Against Women and Their Children Children Act of 2004) Republic Act No. 76 7610 10 (Special Protection of C Children hildren Against Against Abuse, Exploitation, Exploitation, and Discrimination Act) L. Republic Act No. 11313 (Safe Spaces Act) M. Republic Act No. 10 10173 173 (Data Privacy Act of 2012) B. C. D. E. F. G. H. I. J. K.

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B. CRIMINAL LAW  A. BASIC B ASIC PRINCIPLES OF CRIMINAL L AW a. Mala in se and se and Ma Mala la prohibi ta  ta  Q: Distingui Distingui sh malum in se from malum prohibitum .  A: a. MALUM IN IN SE - A crime where the act act done is inherently bad, bad, evil and w wrong rong in nature, such that it is generally condemned. The moral traits of the offender are taken into account in punishing the crime. Good faith or lack of criminal intent or malice is a defense. (Garcia v. CA, G.R. No. 157171, 2006,

b.

citing Reyes, Book 1, p. 55)  55)  MALUM PROHIBITUM PROHIBITUM - A crime where where the act done is not inherently bad, evil or or wrong but prohibited prohibited by law for public good and welfare. Anyone who voluntarily commits the prohibited act incurs criminal c riminal liability. Good faith or lack of criminal intent or malice is not a defense. (U.S. v. Go Chico, G.R. No. 4963, 1909)  1909) 

b. Generality Q: What What is the Generality Generality principl e of Criminal Law?  A:  Penal laws shall be obligatory oblig atory upon all who live or sojourn in the Philippine territory. (Art 14, CC)  CC)   Q: What What are the exceptions t o the Gene Generality rality princ iple of Criminal Law?  A: 1. Treaty stipulations and international agreements; 2. 3.

Law of preferential application; and Principles of Public International Law. (Reyes, Book 1, p. 10)  10)  

c.

Territoriality

Q: What What is the Territoriality Territoriality pr inciple of Criminal Law?  A: Penal laws have the force and effect only within its territory. territory. (Art 2, RPC) Q: What What are the exceptions to th e T Territoriality erritoriality princi ple of Criminal Law?  A: 1. Treaties; and 2. Laws of preferential application. (Art. application. (Art. 2, RPC) Q: What What are the exceptions to th e rule that penal la laws ws of the Philippines are enforceable only within its territory?  A: 1. Should commit commit an offense while while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or or currency note of the Philippine Islands or obligations obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the the introduction into these islands o off the obligations obligations and securities mentioned in the preceding number; 4. While being public officers officers or employees, employees, should commit an an offense in the exercise of their functions; or 5. Should commit commit any of the crimes against national security and the law of nations. (Art. 2, RPC)

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d. Prospectivity Q: What What is the Prospectivity princ iple of Criminal Law?  A:  Crimes are punished under the laws in force at the time of their commission. Thus, a penal law cannot punish an act done before its effectivity. effectivity . (Art. 366, RPC)  RPC)   Q: What What is the exception exception t o the Prospectivity princi ple of Criminal Law?  A: When the new law is favorable to the accused (Art. 22, RPC) such as when law prescribes a lighter penalty for the crime committed. Q: What What are the exceptions to th e exception exception to the Prospectivity principl e of Criminal Law? Law?  

 A: 1. 2.

The new law is expressly inapplicable to pending actions or existing causes causes of actions (Tavera v. Valdez, G.R. No. L-922, 1902); 1902); and The offender is a habitual criminal. (Art 22, RPC)  RPC)  

e. Actu s reus, mens rea Q: What What are the two elements elements of an intentional felony ?  A: 1. Criminal act; and 2. Criminal intent. (Campanilla, p. 48) Q: What What do es actus reus mean?  A:  Actus reus or “criminal act” is required to be committed to consummate a felony. For example, in the crime of homicide, the criminal act is the “killing.” Thus, killing the victim consummates the crime. (Campanilla, p. 48)  48)   Q: What What do es mens rea mean? rea mean?  A:  Accepted in this jurisdiction as material in cri crimes mes mala in se, se, mens rea has rea has been defined as "a guilty mind, a guilty or wrongful purpose or criminal intent," which is "essential for criminal liability.” (Valenzuela y Natvidad v. People, G.R. No. 160188, 2007)  2007)   Q: What What does the legal maxim “actus “actus non f acit reum, nisi mens sit rea” rea” mean?  mean?   A:  "The act itself does not make man guilty unless his intention were so.” (U.S. v. Ah Chong, G.R. No. L5272, 1910)  1910)  The long-standing Latin maxim "actus " actus non facit reum, nisi mens sit rea" rea" supplies an important characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can be no crime when the criminal mind is wanting. For a crime to exist in our legal law, l aw, it is not enough that mens rea be shown; there must also be an actus reus. It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. (Valenzuela y Natvidad v. People, G.R. No. 160188, 2007)

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f.

Pro reo principle reo  principle

Q: What is the Pro Reo principle of Criminal Law?  A:  The fundamental principle in applying and interpreting criminal laws is to resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused. This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt. (People v. Temporada, G.R. No. 173473, 2008)  2008)   Q: Differentiate between grave felonies, less grave felonies, and light felonies.  A: temporal, perpetual or temporary a. GRAVE FELONIES - Punishable by reclusion perpetua, reclusion temporal, perpetual

b.

c.

absolute disqualification, perpetual or temporary special disqualification and prision mayor. The fine is above P1,200,000. (As amended by R.A. No. 10951) LESS GRAVE GRAVE FELONIES - Punishable Punishable by prision correccional, arresto mayor, suspension  suspension   and destierro.. The fine does not exceed P1,200,000 but is not less than P40,000. (As amended by R.A. destierro No. 10951) LIGHT FELONIES - those infractions infractions of law for the commission of which the penalty penalty of arresto menor   or a fine not exceeding 40,000 pesos or both, is provided. Light felonies are punishable only when whe n they have been consummated. They produce such light, such insignificant moral and material injuries that public conscience is satisfied with providing a light penalty for their consummation. ●  EXCEPTIO EXCEPTION: N: Light felonies committed against persons or property, are punishable even even if attempted or frustrated. ●  Rationale: The commission commission of felonies against persons or propert property y presupposes presupposes in the offender moral depravity.

Q: Differentiate betw een een aberratio  aberratio ictus, error in perso nae, nae, and praete praeterr intentionem intentionem and  and ignorantia facti excusat.    A:  AB ERRATIO ICTUS 

ERROR IN PERSONAE 

PRAETER INTENTIONEM  

Mistake in the Blow  

Mistake in Identity  

The injurious result is greater than that intended 

It is a compound crime when the single act results in two or more crimes (Art. 48); otherwise, the offenses shall be separately punished.  

If the intended crime  Article 49 will not apply. and crime actually This is a mitigating committed are circumstance. (Art. 13 punished with par. 3)  different penalties: The lesser penalty for the crime intended or committed is imposed. (Art. 49) 

The Law&Pertaining To The State And Its Relationship With Its Citizens Criminal Law

IGNORANTIA FACTI EXCUSAT  Mistake of Fact  

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part (Ah Chong, G.R. No. L-5272)  

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Q: What What are the elements of an impo ssible crim e?  A: 1. Act would have been been an offense ag against ainst persons persons or property; 2. There was criminal intent; 3. Accomplishment is inherently impossible (legal impossibility or physical physical impossibility), or inadequate or ineffectual means are employed; and 4. Act is not an actual violation of another provision of the Code or or of special law. (Art. law. (Art. 4, RPC)  RPC)   Q: What What is the difference betwee between n legal impossibi lity and factual impossibili ty?  A: Legal impossibility refers to intended acts acts even if completed w would ould not amount to a crime. The impossibility of killing a person already dead falls in this category. Factual impossibility refers to Extraneous

circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime, such as a man who puts his hand in another’s an other’s pocket with intent to steal and finds the pocket empty. (Intod v. CA, G.R. No. 103119, 1992)   Q: Distingui Distingui sh the three stages stages of co mmitting a felony.  felony.    A: a. ATTEMPTED - Offender commences the execution of the felony by overt overt acts but does not perfo perform rm all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. b. FRUSTRATED - Offender Offender performs all the acts of execution of th the e felony but does not produce it by reason of causes independent of the will of the offender. c. CONSUMM CONSUMMATED ATED - Offender performs performs all the acts of execution and produces the the felony. (Art. 6, RPC)  RPC)   Q: What What are overt acts?  A:  An overt act is some physical activity or deed, indicating the intention in tention to commit a particular crime, more than a mere planning or preparation, p reparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. It is possible that an overt act may not be by physical activity but by mere communication or proposal. (People v. Lizada, G.R. No. 143468-71, citing Reyes, Book 1, p. 99)  99)   Q: When When is spontaneous desistance exculpatory?  A: 1. When made during the attempted attempted stage; AND 2. The acts already committed committed do not constitute any other offense. (People v. Villacorte, G.R. No. L21860, 1974)  1974)  NOTE: Cause for desistance is immaterial. im material. (People  (People v. Villacorte, G.R. No. L-21860, 1974)  1974)   Q: What What are the manners of committi ng a crime?  A: 1. Formal crimes – crimes – these  these crimes are consummated in one instant. There are no attempted or frustrated stages. 2. Crimes consummated by mere attempt or proposal o orr overt act. 3. Felony by omission omission –  – there  there is no attempted stage in these crimes since the offender does not execute an act, but rather fails or omits to perform an act. 4. Crimes consummated by mere agreement (requires the intervention of two persons). persons).

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5.

Material crimes  –   –  crimes which have three stages of execution (attempted, frustrated and consummated). (Reyes, Book 1, page 121-123)  121-123)  

Q: Define Plurality of Crimes.  A: Plurality of crimes consists in the successive execution by the same individual of different criminal acts upon any of which no conviction has yet been b een declared. It is either formal or ideal plu plurality rality (only one criminal liability) or real or material plurality plu rality (each act is a separate crime). crime). (Reyes,  (Reyes, Book 1, page 701)  701)   Q: What What are the two kinds of plurality o f crimes?    A:  1. Formal or ideal plurality - Plural crimes of the the formal or ideal type are divided divided into three groups. groups.

1. 2.

2.

When the offender offender commits any of the complex crimes When the law specifically fixes a single penalty fo forr two or more o offenses ffenses committed (e.g. (e.g. robbery with homicide, kidnapping with serious physical injuries) 3. When the offender commits continued crimes (Reyes, Book 1, page 701)  701)   Real or material plurality Example: A stabbed B with a knife. Then, A also stabbed C. There are two crimes committed. Note that there are two acts performed. performed. This is an example of a real or material plurality. In such cases, the offender shall be punished for each and every offense that he committed. (Reyes, Book 1, page 701)  701)  

Q: What What is a continuing crime?  A:  It is a single crime, consisting of a series of acts but all arising from one criminal resolution. Although there is a series of acts, there is only one crime committed; thus, only one on e penalty shall be imposed. (Mallari v. People, G.R. No. L-58886, 1988)  1988)   EXAMPLE:  Eight robberies as component parts of a general plan. While inhabitants of a barrio were EXAMPLE: working in a sugar mill, seven armed persons, who had a general plan to commit robbery against all those in the place, entered the mill and while two of the bandits guarded the people with guns, five of them ransacked the houses. The several acts of ransacking the different houses were not unconnected and they formed component parts of the general plan to despoil all those within the vicinity. There is only one crime of robbery in this case. (People v. Dela Cruz, G.R. No. L-1745)   Q: Distingui Distingui sh between between comp ound and com plex crime proper.  A: a. COMPOUND CRIME - Results when the the offender commits commits only a single fe felonious lonious act from which which two or more grave or less grave felonies are a re produced. i) When a single bullet results in the death of two or more persons. (People v Nelmida, G.R. No. 184500)  184500) A person  fire a gun against another with intention intention to kill the latter, and and no nott only kills him but a also lso a third person who was beside the victim. We have a single act, a single shot, which produces two homicides. (People v Buyco, G.R. No. L-539)  L-539)   COMPLEX CRIME - Results when the offender commits an offense offense which is a necessary means fo forr committing another offense. offense. (Art. 48, RPC) Only RPC) Only one information shall be filed and if proven, the penalty for the more serious crime shall be imposed. i mposed. (People v. Pineda, G.R. No. L-26222, 1967)  1967)  i) The crime of falsification of of a private document document is not in ge general, neral, an e essential ssential element element of of the the crime of estafa, because this offense may be committed through many and varied means; but if a defendant is charged in a complaint or information with having committed falsification of a ii)

b.

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ii)

iii)

private document as a means for committing estafa, the offense charged would be a complex offense of estafa through falsification. (Parulan v Rodas, G.R. No. L-1536)  L-1536)  If the offense charged is that tthe he defendant abducted or carried by force the the vict victim im from from one place to another wherein the latter was raped by the former, the crime charged would be a complex crime of rape through abduction, the abduction being in such a case a necessary (Id)   means to commit the rape. (Id) Although homicide or murder may be committed wherever the victim may be found, yet if the charge in a complaint or information is that the victim was kidnapped and taken to another distant place in order to demand ransom for his release and kill him if ransom is not paid, the offense charged would evidently be a complex crime of murder through kidnapping, the latter being a necessary means to commit the former. (Id.) (Id.)  

Q: Distingui Distingui sh the following from ea each ch other: 1. Complex crime under Artic le 48 of the Revised P Penal enal Code; 2. Spe Special cial complex crime; and 3. De Delito lito contin uado.  A: COMPLEX CRIME (ART. 48)

SPECIAL COMPLEX CRIME

DELITO CONTINUADO

It is made up of two or more crimes being punished in distinct provisions of the Revised Penal Code but alleged in one information either

It is made up of two or more crimes which are considered only as components of a single indivisible offense being punished in one provision of

It is the term used to denote as only one crime a series of felonious acts arising from a single criminal resolution, not susceptible of division, which are carried out in the

because they were brought about by a single felonious act or because one offense is a necessary means for committing the other offense or offenses; hence, only one penalty shall be imposed. As to penalties in an ordinary complex crime, the penalty for the most serious crime shall be imposed and in its maximum period. (Art. 48, RPC)  RPC)  

the Revised Penal Code; hence, only one penalty is specifically prescribed. The component crimes are not regarded as distinct crimes and so the penalty for the most serious crime is not the penalty to be imposed nor in its maximum period. (People v. Laraaga, G.R. No. 138874- 75, 2004)   2004)

same place and at about the same time, and violating one and the same penal provision. It involves a concurrence of felonious acts violating a common right, common penal provision, and Impelled by a single criminal impulse. (People v. Ledesma, G.R. No. L-41522, 1976)  1976)  

Q: Does Article 48 (Complex Crimes) apply to acts penalized under Article 365 (Reckless Imprudence)?  A: No. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more g grave rave or less grave felonies; or o r (2) an offense which is a necessary means for committing another. ((Ivler Ivler v. San Pedro, G.R. No. 172716, 2010)  2010)  

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B. JUSTIFYING, EXEMPTING, MITIGATING, AGGRAVATING, AND ALTERNATIVE CIRCUMSTANCES a.

Justifying

Q: What What are justifyi ng circum stances?  A:  Justifying circumstances are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law l aw and is free from both criminal and civil liability. l iability. There is no civil liability, except in paragraph 4 of Article 11 (avoidance of a greater evil or injury), where the civil liability is borne by the persons benefited by the act. (Reyes, Book 1, p. 157)  157)  

Q: What What are the six justify ing cir cumstances and their requisites?  A: JUSTIFYING CIRCUMSTANCE 

REQUISITES  1. 2.

SELF-DEFENSE  3.

DEFENSE OF RELATIVE 

1. 2.

Unlawful aggression Reasonable necessity of of the means employed to pre prevent vent or repel it

3.

In case case provocation washad given th the etherein person(People attacked, the one the making a defense no by part v. Eduarte, G.R. No. 72976)  72976) 

Relatives that can be defended:   1. Spouse 2. Ascendants 3. Descendants 4. legitimate, natural natural or adopted brothers and sisters, sisters, or relatives by affinity in the same degree 5. Relatives by consanguinity within the fourth fourth civil degr degree ee 1. 2.

DEFENSE OF A STRANGER 

 AVOIDANCE OF A GREATER EVIL OR INJURY 

Unlawful aggression Reasonable necessity of of the means employed to pre prevent vent or repel it Lack of sufficient provocation on the pa part rt of th the e person defending himself (Art. 11, par. 1)  1) 

3.

1. 2. 3.

Unlawful aggression Reasonable necessity of the means employed to prevent prevent or repel it The person defending be not induced by revenge, revenge, resentment, or other evil motive (People v. Moral, G.R. No. L-31139)   L-31139) That the evil sought to be avoided avoided actually exists That the injury feared be greater than that that done to avoid avoid it That there be no other practical practical and less harmful means of preventing it (Art. 11, par. 4)  4)  

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1. PERFORMANCE OF DUTY 

OBEDIENCE TO AN ORDER BY A

2.

1. 2. 3.

That the the accused acted in the performance performance of a duty or in the lawful exercise of a right or office That the injury caused or the offense offense committed be the necessary consequence of the due performance of duty or lawful exercise of such right or office (People v. Oanis, 74 Phil. 257, 259)  259)  That an order has been issued by a superior superior That such order must be for some lawful purpose That the means means used by the subordinate to carry out said order is lawful

SUPERIOR OFFICER 

NOTE: Both the person who gives the order and the person NOTE: who executes it, must be acting within the limitations prescribed by law (People v. Dolores, 52 Phil. 919)  

Q: What is the difference between retaliation and self-defense?  A: 1. RETALIATION RETALIATION - The aggression that that was begun begun by the injured party already ceased to exist exist when the accused attacked him. 2. SELF-DEFENSE SELF-DEFENSE - The aggr aggression ession still existed when when the aggressor was was injured by the per person son defending. (People v. Decena, G.R. No. 107874, 1994)  1994)   Q: What What is the effect of claiming self-defense? self-defense?  A:  By invoking self-defense, the accused, in fact, admitted that he inflicted injuries on the victim. The bu burden rden of proving with clear and convincing evidence the justifying circumstances to exculpate him from criminal liability was thereby shifted to him. (Tandoc v. People, G.R. No. 150648, 2007) 2 007)   Q: What What are the two kinds of unlawful aggression?  A: 1. Actual or Material Material Unlawful Aggression - It is an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor a ggressor to cause the injury. 2. Imminent Unlawful Unlawful Aggression - It It is an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong. (People v. Dulin, G.R. No. 171284, 2015)  2015)   Q: What What is the battered battered woman syn drome?  A:   Battered woman syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result r esult of cumulative abuse. (R.A. 9262, Sec. 3(c))   3(c)) The three phases are: (1) tension-building phase, (2) acute battering incident, and the (3) tranquil, loving, or non-violent phase. (People v. Genosa, G.R. No. 135981, 2004)  2004)   Q: Is the Battered Battered Woman Syndrome a defense against against cri minal liability?  A: Yes. Women suffering from BWS do not incur any criminal or civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense self -defense under the RPC. (RA 9262, Sec. 26)  26)  

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Q: Can Can BWS be invoked dur ing the tranquil stage?  A:  Yes, as long as it is proven that the three phases of the cycle of violence have occurred twice, and the syndrome is established (People v. Genosa, G.R. No, 135981), 135981 ), further evidence of actual physical assault (unlawful aggression) at the time of the killing is not required. (R.A. 9262, Sec. 26) Q: When When is obedience to an order of a superior a justifying circumst ance?  A: When the order is lawful. Also, if the accused complied with an unlawful order under a mistake of fact, he should not incur criminal liability. However, where the act which the accused was ordered to do was clearly unlawful even to an ordinary person, pe rson, the justifying circumstance is unavailing. unavailing. (People  (People v. Beronilla, G.R. No. L-4445, 1955)

b. Exempting Q: What What are exempting cir cumstances?  A: Exempting circumstances (non-imputability) are those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent. (Reyes, Book 1, p. 227)  227)  Q: Differentiate Differentiate between between justifyi ng and exempting exempting circumstances.    A:   JUSTIFYING CIRCUMSTANCES 

EXEMPTING CIRCUMSTANCES 

Those where the act of a person is said to be in accordance with law  

One who acts by virtue of any of the exempting circumstances commits a crime  

Such person is deemed not to have transgressed the law and is free from both criminal and civil liability.

By the complete absence of any of the conditions which constitute the free will or voluntariness of the act, no criminal liability arises. Civil liability arises from the crime committed, but shall be borne by persons other than the accused.  

NOTE: Except Art. 11, par. 4 (avoidance of a greater evil or injury), where the law imposes civil liability upon persons benefiting from said act.  

NOTE: Except Art. 12, par. 4 and 7.   (REYES, Book I, pp. 157 and 228) 2 28)  Q: Enumerate Enumerate the exempting cir cumstances.    A: The following are exempt from criminal liability: liabil ity:   1. An imbecile or an insane person, unless the latter has acted dur during ing a lucid interval. interval.   When the imbecile or an insane person has committed an act which the law defines as a felony (delito delito), ), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. A person under 15 years of a age. ge. (As  (As modified by Sec. 6 or R.A. No. 9344)  9344)    A person over nine years ye ars of age and an d under fifteen, unless he has acted with discernment. ( NOTE: Under Sec. 6 of R.A. No. 9344, the age is now above 15 but below 18. The child shall be subject su bject to an intervention program.) Any person who, while performing performing a lawful lawful act with due care, causes an injury by mere accident without without fault or intention of causing it. Any person person who acts under the compulsion of an irresistible force. •

2. 3.

4. 5.

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6. Any person who acts under the impulse of an uncontrollable fear of of an equal or greater injury. 7. Any person who who fails to perform perform an act required by law, when prevented by some some lawful or insuperable cause. (RPC, Article 12)  12)   Q: What What are the tests for exemption on t he grounds of insanity?  A: 1. Cognition, where the accused acted with complete deprivation of intelligence in committing committing said crime. OR 2. Volition, where where the accused acted with total deprivation of freedom of will. (People v. Rafaman, Jr., G.R. No. L-54135, 1991);  1991); 

Q: What What happens when the minor acts with discernm ent?  A:  When the child is exactly 15 years of age or under at the time of the commission of the crime, he shall be exempted from criminal liability. However, the child shall be subjected to an intervention program pursuant to Sec. 20 of the Juvenile Justice and Welfare Act (JJWA). When a child is 15 years and 1 day and above, but below 18 and he has acted with discernment, the child shall be subjected to the appropriate proceedings in accordance with the JJWA. (Sec. 6, JJWA)  JJWA)    AGE; DISCERNMENT 

CRIMINAL CRIM INAL LIA BILITY  

15 or under, regardless of discernment  

Exempt, but shalI undergo intervention program 

 Above 15 but below below 18, without discernment 

Exempt but shall undergo intervention program  

 Above 15 but below below 18, with discernment 

Subject to criminal liability but shall undergo diversion program  

 At least 18 

Subject to criminal liability  

(R.A. No. 9344, Sec. 6, as amended by Sec. 3 of R.A. No. 10630)   Q: What What is the scope of minori ty?  A: 1. A child 15 years of age or under at the the time of the commission commission of the off offense ense shall be exempt from criminal liability (Sec. 6, R.A. 9344).  9344).  NOTE:: Shall be subject to an intervention program; or NOTE 2. A child above 15 but below 18 years of age at the time of the the commission of the the offense shall likewise be exempt from criminal liability, provided he acted without discernment. NOTE: The child is subject to an (a) intervention, a series of activities which are desig NOTE: designed ned to address issues that caused the child to commit the offense, taking the form of an individualized treatment program i.e. counseling, skills training, education etc. to enhance psychological, emotional and psycho-social wellbeing, or (b) diversion program, program that the child in conflict with the law is required to undergo after being found responsible for an offense without resorting to formal court proceedings. (R.A. 9344, Sec. 4)  4)   Q: Who is a child in conflict with the law (CICL)? (CICL)?  A:  A child alleged as, accused of or adjudged as, having committed an offense under PH laws (Sec. 4(e), R.A. 9344). BUT 9344). BUT only if such child is 15 years old or below at the time of the commission of the crime. This

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is conclusive presumption that CICL are incapable of performing the criminal act due to complete absence of intelligence, freedom of action, or intent. (Ortega v. People, G.R. No. 151085, 2008).  2008).   Q: How do you determine the child’s age?  age?    A: 1. Through the birth certificate, baptismal cert certificate, ificate, or any othe otherr pertinent documents; 2. Based on on informa information tion from the child himself/herself, testimonies of other persons, physical appearance of the child and other relevant evidence; evi dence; (Sec. 7, R.A. 9344) AND/OR 9344)  AND/OR 3. Lack of any contrary evidence showing that the accused’s or his relative’s testimonies are untrue. (Sierra v. People, G.R. No. 182941, 2009)  2009)  

Q: What What offenses are not applicable to c hildren?  A: 1. Prostitution under Art. Art. 202 of of the RPC; 2. Mendicancy under P .D. No. 1563; and 3. Sniffing of rugby under P.D. 1619 (Sec. 1619 (Sec. 58, R.A. 9344)  9344)   Q: May May a child apply for Probation?  A: Yes. The court may, after it shall have h ave convicted and sentence sentenced d a CICL, and upon application at any time, place the child on probation in lieu lie u of service of his/her sentence taking into account the best interest of the child. (Sec. 42, R.A. 9344)

c. Mitigating Q: What What are mitigating circ umstances?  A: Mitigating circumstances are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to t o reduce the penalty. (Reyes, Book 1, p. 263) Q: Enumerate Enumerate the mitigating circumst ances.   A:   1. Incomplete justifying or exempting circumstances a. Incomplete self-defense, defense defense of relatives, and defense o off a stranger   Unlawful aggression is an indispensable rrequisite. equisite. When two of the three requisites mentioned therein are present (i.e., unlawful aggression and any one of the other two), the case should be considered a privileged mitigating circumstance referred to in Art. 69 of the RPC. (REYES, Book One)  One)  b. Incomplete justifying circumstance circumstance of avoidance of greater greater evil or injury   If an any y of tthe he last two two requisites is absent (i.e. injury feared be greater than that to avoid it or or there be no other practical and less harmful means of preventing it) (Id.). (Id.).   c. Incomplete justifying circumstance of performance of duty d. Incomplete justifying circumstance circumstance of obedience to to an order order e. Incomplete exempting circumstance of accident f. Incomplete exempting circumstance of uncontrollable fear 2. When offender is over 15 years of age but under under 18 years of age and acted acted with discernment or when when he is over 70 years old 3. Lack of intention to commit commit so grave a wrong wrong as that committed 4. Sufficient provocation provocation or threat on the part of the offended party a. The provocation must be sufficient; b. It must originate from the the offended party •

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c. That the provocation must b be e immediate to the act (REYES, Book One).  One).   5. Vindication of of a grave offense offense a. Victim committed committed a grave offense b. The grave offense was was committed against the off offender ender or his spouse, ascendants ascendants,, descendants, legitimate, illegitimate or adopted brothers or sisters, or his relatives by affinity within the same  (RPC, Art. 13[5]); degrees (RPC, degrees c. The offender committed the the crime in proximate proximate vindication of such grave offense (I CAMPANILLA, Reviewer)   Reviewer) 6. Passion or obfuscation a. There be an act, both unlawful unlawful and sufficient to produce such a condition (passion or obfuscation) of the mind (People v. Comillo, G.R. No. 186538, 2009).  2009).  

b. Said act which produced produced the obfuscation was not far removed from the commission o off the crime by a considerable length of time, during d uring which the perpetrator might recover his normal equ equanimity animity (Del Poso v. People, G.R. No. 210810, 2016); 2 016); and  and c. The passion or obfuscation obfuscation must arise from lawful lawful sentiments and not out of revenge (Napone, Jr. v. People, G.R. No. 193085, 2017).  2017).   7. Voluntary surrender a. The offender offender has Not Not actually been arrested; b. The offender surrendered himself to a person in authority or to the latter’s agent; and  and   c. The surrender was voluntary voluntary (People v Placer, G.R. No. 181753, 2013)  2013)  8. Voluntary Confession of Guilt a. The offender spontaneously confessed his guilt; b. The confession of of guilt was made in open court, that is, before the competent court that is to try try the case (judicial confession); and The con confession fession of guilt was made prior to the presentation of evidence for the prosecution (People v Juan y Leste, G.R. No. 152289, 2004)  2004)   9. Physical defect of of offender (deaf, dumb, blind, or others) 10. Illness of offender diminishing diminishing his willpower; and a. The illness of the offender offender must diminish the exercise of of his will-power; and b. Such illness should not deprive deprive the offender of consciousness of his acts (REYES I)  I)  11. Other similar reasons or analogous circumstances (RPC, Art 13)  13)  c.

Q: When When is voluntary s urrender appreciated? appreciated?  A: In order for it to be appreciated, the same must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. It is no longer mitigating if the accused had already been arrested. (People v. Lozano, G.R. No. 137370-71, 2003)

d. Aggravating Q: What What are aggravating cir cumstances?  A:   Aggravating circumstances are those which, if attendant in the commission of the crime, serve to increase the penalty without, however, exceeding the maximum of the penalty provided by law for the offense.. (Reyes, Book 1, p. 345)  offense 345)   Q: Enumerate Enumerate the aggrava aggravating ting circumstances and give their r equisites.   A:   1. Taking advantage of public position

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a.

2.

3.

Public officer must use influence, prestige, or ascendancy ascendancy which his office g gives ives him as as a means to attain his desired purpose b. The accused abused his office office to commit the crime crime Contempt or Insult to Public Authorities a. Public authority authority is engaged engaged in exercise of of h his is functions b. He who is engaged engaged in the exercise of functions functions is not the person person against whom the crime is committed c. Offender knows him to to be a pub public lic authority authority d. His presence presence has not prevented the offender offender from committing the the criminal act Disregard of rank, age, or sex against pers persons ons or honor a. Evidence that in the commission of the crime, crime,

4.

5.

6.

7.

b. The offender offender deliberately intended to offend or insult the sex, age, a and nd rank of the offended party Dwelling of the offended party a. The abuse of of confidence which the off offended ended party reposed reposed in the offender by opening the door to him; b. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner Abuse of Confidence a. That the offend offended ed party had trusted trusted the of offender fender b. That the offender abused such trust by committing a crime against the offe offended nded party c. That the abuse of confidence facilitated the the commission of the crime Obvious Ungratefulness a. That the offend offended ed party had trusted trusted the of offender fender b. That the offender abused such trust by committing a crime against the offe offended nded party c. That the a act ct be committed with obvious ungratefulness (1) In the palace of the chief executive, or in his presence, presence, or (2) Where public authorities are engaged in the discharge of their their duties, or (3) In a place dedicated to to religious worship.   Except for for the tthird hird which requ requires ires that official official functions are being performed at the time time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there. Nighttime, uninhabited place a. Facilitated the commission of the crime b. When especially sought for by the offender offender to insure the comm commission ission of the crime or for for the purpose of impunity c. When the offender took advantage thereof for the purpose purpose of of impunity By a Band a. Four armed persons contemplated in this circumstance •

8.

9.

b.

Must all be principals by direct participation who acted acted together in the execution of the acts constituting the crime 10. Occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity calamity or misfort misfortune une a. Refers to the time of the commission commission of the crime, no nott the means b. Offender must have taken taken advantage of the calamity calamity or misfortune 11. Aid of armed men a. That armed men or persons took part in the commission of the crime, directly or indirectly b. That the accused availed himself of their their aid or or relied upon them when the crime wa was s committ committed ed c. At least two armed men 12. Persons who insure or afford impunity

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  Offender purposely sought sought or consciously relied upon persons to secure him against detection and punishment. Said persons are not required to be armed 13. Recidivism a. That the offender is on trial for an offense; b. That he was previously convicted by final judgment of another another crime; c. That both the first and the second offenses are are embraced in the same title of tthe he Code d. That the offender is convicted of the new offense 14. Reiteracion Reiteracion or  or habituality a. The accused is on trial for an offense offense b. That he previously served sentence for another offense offense to which the law attaches an i.Equal or •

ii.Greater penalty or iii.For two or more crimes to which it attaches a lighter penalty than that for the new offense; c. That he is convicted of the new offense 15. In consideration consideration of a Price, Price, Reward, Promise a. There must be two or more principals I. The one who gave or offered the price or promise II. The one who who accepted accepted it b. Both are principals 16. That the crime be committed committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. 17. Evident Premeditation a. The time when the offender offender determined to commit the crime; b. c.

18.

An act act ma manifestly nifestly indicating that the culprit has clung to his determinat determination. ion. A sufficient lapse of time time between the the determination and execution to allow allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will Employment of Craft   Involves intellectual trickery trickery and cunning on th the e part of the accused; accused; done not to a arouse rouse the suspicion of the victim Employment of Fraud   Insidious words words or machinations machinations used to induce the victim victim to act in a manner manner which would enable the offender to carry out his design; direct inducement by insidious words or machinations Employment of Disguise   Resorting to any device to conceal identity Abuse of Superior Strength   To deliberately use excessive force that is out of proportion to the means for self- defense available •

19.

•

20.

•

21.

•

to the person attacked. 22. Weaken the defense   The offender offender employs means that materially weakens the resisting power of the offended party. 23. Treachery ( Alevosia)  Alevosia) a. At the the tim time e of the att attack, ack, the victim was not in a position to defend himself; and and b. The offender offender consciously adopted the particular particular means, m method ethod or form of attack attack employed by him. 24. Ignominy   A circumstance circumstance pertaining to the moral order, which which adds disgrace and obloquy to the material injury caused by the crime. •

•

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25. Unlawful entry a. There is an unlawful entry when an entrance is effected by a way not not intended for the the purpose. b. Unlawful entry must be a means to effect effect the entrance entrance and not for esc escape. ape. 26. Breaking of Parts of of the House a. Applicable only if such act acts s were done by the offender offender to affect entrance. b. Not necessary that the offender should have entered the building. building. 27. Aid of persons under under 15 years of age 28. By means means of m motor otor vehicles, airships, or other similar means a. Used in going to the place of the crime b. In carrying away the effects thereof and c. In facilitating their escape

29. Cruelty a. That the injur injury y caused be deliberately deliberately increased b by y causing o other ther wrong b. That the other wrong be unnecessary for for the execution of the purpose of the offender. Q: What What is a special aggravating aggravating c ircumstance?  A:  They arise under special conditions to increase the penalty for the offense to its maximum period but it does not increase the penalty to the next higher degree. Examples are quasi-recidivism and complex crimes. It does not change the character of the offense charged and cannot be offset by an ordinary mitigating circumstance. (Palaganas v. People, G.R. No. 165483, 2006)  2006)   Q: What What is the effect effect of pardon on the appreciation of recidivism?  A:  A pardon should not be an impediment to the consideration co nsideration of recidivism as an aggravating circumstance for a pardon only produces the extinction of the penalty, but not personal effects of the record of the conviction. (U.S. conviction.  (U.S. v. Sotelo, G.R. No. L-9791, 1914) Q: How How far apa apart rt must the two crimes be for recidivis m to be cons idered?  A:  There is no limit. li mit. Recidivism must be taken into account as an aggravating circumstance no matter how many years have intervened between the first and second felonies. felonies. (People v. Jaranilla, G.R. No. L-28547, 1974) Q: When When is evident premeditation not aggravating?  A:  In the case of implied conspiracy, evident premeditation may not be appreciated in the th e absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be be determined if the accused had “sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences. (People v. Manansala, G.R. No. 88752, 1992)

Even if all the elements of evident premeditation were present, it still cannot be appreciated if the actual victim is different from the intended one. (People v. Barros, G.R. Nos. 10107-08, 1995)  1995)   Q: What What differentiates differentiates cruelty from ign ominy?  A: Cruelty adds insult to the injury, pertaining to t o the physical suffering of the victim. Ignominy refers to the moral effects of a crime, pertaining to the moral order, o rder, whether or not the victim is dead or alive. Q: Is Is dwelling aggravating in robb ery?  A:   It depends. It is aggravating in robbery committed through violence or intimidation of persons only (People v. Cabato, G.R. No. L- 37400, 1988); 1988); it is inherent in robbery through force upon things, even if committed inside an inhabited house. (U.S. v. Cas, 14 Phil 21)  21)  

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Q: What What is th e difference between between the aggravating cir cumstances of by a band and aid of armed men or persons persons who afford impunity ?  A: BY A BA BAND ND

AID OF ARMED MEN OR PERSONS WHO AFFORD A FFORD IMPUNITY IMPUNITY

Four armed malefactors take part in its commission. They are principals by direct participation.

Two or more armed men. The armed men are accomplices who take part in minor capacity, directly or indirectly.

(Reyes, Book 1, p. 391)

Q: When is “aid of armed men” absorbed in “by a band,” and when can it be taken separately as another aggravating aggravating circum stance?  A:  When the offenders are more than three, all armed, and they actively cooperated in the commission of the crime, “The aid of armed men” is absorbed in “by the band.” (People vs. Piring, 63 Phil. 548)  548)   But when the offender secured the services of armed men to commit the crime, that offender committed the crime with the aid of armed men. (People men.  (People vs. Ilane, G.R. No. 45902, 1938)  1938)   Q: Against whom can t he aggravating aggravating circ umstance of pr ice, re reward, ward, or promise appreciated?  A:  This circumstance aggravates not only the criminal liability liabi lity of the receiver of the price, reward, or promise but also the criminal liability of the one giving the offer. As all the defendants contributed toward the attendance of this circumstance, it should affect each and all of them. (People v. Maharaja, G.R. No. 13312, 1918)   1918)

e.

Alternative

Q: What are alternative circumstances?  A: Alternative Alternative circumsta circumstances nces are those those which must must be taken taken into consideration consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. co mmission. (Reyes, Book 1, p. 489) Q: What are the three alternative circumstances?  A: 1. Relationship; 2. Intoxication; and 3. Degree of instruction and education of the offender. offender. (Art 15, RPC)

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Q: When When are they considered as mitigating or aggravating?  A: RELATIONSHIP RELATIONSHIP   Mitigating

Aggravating

In crimes against property (Reyes, Book 1, p 489,  Art. 332, RPC by analogy)  analogy) 

In crimes against persons in cases where the offended party is a relative of a higher degree than the offender, or when the offender and the offended party are relatives of the same level. (Reyes, Book 1, p 490)  490)  

In serious physical injuries, if the offended party is a descendant of the offender, relationship is an aggravating circumstance. (Art. 263, RPC) But RPC) But in less serious or slight physical injuries, relationship mitigating if the offended party is a relative of a lower degree. (Art. 265, 266 RPC) NOTE: NOTE: 1. Relationship is not considered if it is an element of the offense. 2. Relationship is always aggravating aggravating in c crimes rimes against chastity. INTOXICATION Mitigating

Aggravating

If (1) the intoxication is not habitual, or (2) if intoxication is not subsequent to the plan to commit a felony.

If (1) the intoxication is habitual, or (2) if it is intentional (subsequent to the plan to commit a felony). (People v. Camano, G.R. No. L- 3666263, 1982) NOTE: There is a presumption that intoxication is accidental.

DEGREE OF INSTRUCTION OR EDUCATION OF THE OFFENDER Mitigating

Aggravating

Low degree of instruction and education or lack of it is generally mitigating. (People v. Baltazar, G.R. No. L- 30557, 1980) There are some crimes where it is not mitigating, e.g. homicide, rape, etc.

High degree of instruction and education is aggravating when the offender avails himself of his learning in committing the crime. (Reyes, Book 1, p. 503)  503)  

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Absol utory Causes Causes

Q: What What are absolutory causes?  A:  Absolutory Causes are those where the act committed is a crime but for reasons of public policy and sentiment, there is no penalty imposed. These are: 1. Spontaneous desistance during attempted stage (Art.6) (Art.6) and  and no other crime is committed; 2. Light felony felony is only attempted or frustrated and and is not against person or property (Art.7); 3. Accessory is not liable in light felonies (Art. 16); 4. Accessory is a relative of the principal (Art.20) (Art.20) unless crime crime became a m means eans to gain gain ( Art.  Art. 19, par. 1); 5. Legal grounds for arbitrary detention (Art.124);

6. 7. 8. 9. 10.

Slight or less serious p physical hysical injuries inflicted by person who surprised his spouse or daughter in the act of sexual intercourse with another person (Art. 247); Legal grounds for trespass (Art.280); Mischief is committed against a relative (Art. 332); Marriage of the the offender with offended party when the crime committed is rape (Art. 266-C),  266-C),   abduction, seduction, or acts of lasciviousness (Art. 344); and 344); and Instigation. (Reyes, Book 1, p. 254)

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  C. APPLICATION OF INDETERMINATE SENTENCE LAW Q: When is the benefit of the Indeterminate Sentence Law not applicable?  A: 1. Persons convicted of offenses punishable with death penalty penalty or life imprisonment; 2. Those convicted of treason, conspiracy conspiracy or proposal to to commit treason; 3. Those convicted of misprision of of trea treason, son, rebellion, sedition or espionage; 4. Those convicted of piracy; 5. Those who are habitual delinquents; 6. Those who shall shall have escaped fro from m confinement or evaded sentence; sentence; 7. Those who who violated the terms of conditional pardon granted granted to them by the Chief Executive;

8. 9.

Those whose maximum term of imprisonment does not exceed one year; Those who, upon the approval of the law (December 5 5,, 1933), had been sentenced by final judgment; and 10. Those sentenced to the penalty of destierro destierro or  or suspension. (Act. No. 4103, Sec. 2)  2)   Q: How is the IIndetermi ndetermi nate Sentence Law Appli ed?  A: The ISL provides for a maximum and minimum, instead of a single fixed penalty. The p prisoner risoner must be sentenced to imprisonment for a period which is not more than the maximum and not less than the minimum. The period between the minimum and maximum is indeterminate in the sense that the prisoner may be exempted from serving said indeterminate period in whole or in part. The prisoner must serve the minimum before he is eligible for parole. The law does not impair the powers of the Chief Executive under the Administrative Code (Sec. 1). Q: How is the ISL applied in Special Laws?  A: If a person is convicted of illegal possession of firearms punishable by 1 year and 1 day to 8 years of imprisonment, the maximum term shall not exceed 8 years as fixed by law. The minimum term shall not be less than the minimum period of 1 year and 1 day as prescribed by law.

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  D. SERVICE OF SENTENCE a. Exe Executio cutio n and service Q: What What are the penalties that may be served simul taneously?  A: The penalties that may be served simultaneously are imprisonment/ imprisonment/destierro destierro AND:  AND: 1. Perpetual Absolute Disqualification; 2. Perpetual Special Disqualification; 3. Temporary Absolute Disqualification 4. Temporary Special Disqualification; 5. Suspension from public office, the right right to vote and be voted voted for, and the right to follow a profession or

6.

calling; and Fine; and any principal penalty with its accessory penalties. (Reyes, Book 1, p. 767)

Q: Can probation be granted after perfecting an appeal?  A:   The GENERAL RULE is even if a person may be eligible for probation, the moment he perfects an appeal from the judgment of conviction, he cannot avail of probation anymore. EXCEPTIONS: 1. The court, may, after it shall have convicted convicted and sentenced a child in conflict with with the law, and upon application at any time, place the child on probation in lieu li eu of service of his sentence taking into account the best interest of the child. child. (Sec. 42, RA 9344) 2. When a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to vs. apply for probation on2011; the modified before such decision becomes final. (Colinares People, G.R. No based 182748, and Sec.decision 4, PD 968 as amended) Q: Enumerate Enumerate at le least ast 5 instances or situations in cri minal cases wherein the accused, e either ither as an adult or as a minor, can apply for and/or be granted a suspended sentence.  A: 1. Where the accused became insane before sentence could be promulgated (Art. 79, RPC);  RPC);   2. Where the offender, upon conviction by the trial court, filed an application for probation which has been granted (Baclayon v. Mutia, G.R. No. L-59298, 1984);  1984);   3. Where the crime crime was committed committed when the offender offender is under 18 years of age and he is ffound ound guilty thereof in accordance with the Juvenile Justice and Welfare Act of 2006, but the trial court subjects him to appropriate disposition measures as prescribed by the Supreme Court in the Rule on Juveniles in Conflict with the Law; 4. The death sentence sentence shall be suspended suspended upon a wo woman man while she is pregnant or within 1 year after delivery (Art. 83, RPC); and RPC); and 5. Section 66 of of the Comprehensive Comprehensive Dangerous Drugs Drugs Act. An accused w who ho is over 15 years o off age at the time of the commission of the offense, but not more than 18 years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: a. He/she has not been previously convicted of violating any provision of the CDDA, CDDA, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special s pecial penal laws; b. He/she has not been previously committed committed to a Center or to to the care of of a DOH-accredited physician; and c. The Board ffavorably avorably recommends recommends that that his/her his/her sent sentence ence be suspended.

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: A was 2 months below 18 years years of age when he comm itted the crime. He He was charged with the crime 3 months later. H He e was 23 when he was finally co nvicted and sentenced. Instead Instead of preparing to serve a jail jail term, he sought a suspension of the sentence on the ground th at he was a juvenile offender. Should Should he be entitled to a suspension of sentence? Rea Reasons. sons.  A:  No, A is not entitled to a suspension of the sentence because he was already 23 years old at the time of his conviction. The benefits of a suspended sentence can no longer apply to A. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum age of twenty-one (21) years. (People v. Jacinto, G.R. No. 182239, 2011) Q: When A committed theft he was 14 years old. During his trial for the crime he was 19 years old. Is A crimi nally liable? If so, can he be given a suspended sentence? Explain.

Is A crimi nally liable? If so, can he be given a suspended sentence? Explain.  A: No, it appearing that at the time of the commission of the crime A was under 15 years of age, A is therefore exempt from criminal liability. It is the age of the minor at the time of the commission of the crime, not his age at the time of the trial, which determines whether or not he is exempt from criminal liability. liab ility. Being exempt from criminal liability, A should be acquitted and the case against him dismissed. The suspended sentence contemplated in Art. 80, RPC, presupposes that the minor is not exempt from criminal liability. However, A can still be given a suspended sentence because Sec. 38 of the Juvenile Justice and Welfare  Act provides that that the child in conflict with th the e law is entitled to a an n automatic suspe suspension nsion of sentence even if he is already 18 years old or more at the time of the pronouncement of his guilt (Sec. 38, JJWA)

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  E. EFFECT OF DEATH OF THE ACCUSED Q: What What is the effect effect of an offender's death to criminal and civ il liabilities?  A: 1. Before final judgment: His death extinguishes both his criminal and civil liabilities. (People v. Alison, No. L-20612, 1972)  1972)  2. While the case is on appeal: Death of the accused accused pending appeal o off his conviction conviction extinguishes his criminal liability as well as the civil liability based solely thereon. (People v. Bayotas, GR No. 102007, 1994)   1994) 3. After final final judgment: Criminal liability is totally extinguished, but but pecuniary penalties are not extinguished.. (Art. 89, RPC)  extinguished RPC)  

Q: One One of the accused di ed pending appeal a and nd before promulgation of the final jud gment. IIs s the personal liability extingui extingui shed both as to criminal liability liability and civil liability?  A: Yes, the personal liability both as criminal and civil liability liabili ty are both extinguished since the death occurred before final judgment. The death of the accused pending appeal of his conviction extinguishes his criminal liability as well as his civil liability ex delicto. Accordingly, the criminal case against should be dismissed. (People v. Alvin Cenido y Picones and Remedios Contreras y Cruz, G.R. No. 210801, 2016)  2016)   Q: What What are the effe effects cts o f the death of an accused pending appeal on hi s liabilities?  A: The effects of the death of an accused pending appeal on his liabilities are as follows: 1. Death terminates his criminal liability and only the civil liability directly arising arising from and based solely on the offense committed; 2. Claim for civil liability survives notwithstanding notwithstanding death, if the same may also be predicated on a source 3.

4.

of obligation other than delict (i.e. laws, l aws, contracts, quasi-contracts, quasi-delicts); Where the civil liability survives, an action for recovery may b be e pursued but only by way of filing a separate civil action enforced either against the executor/administrator or the estate of the accused; and The statute statute of limitations on the civil liability is deemed interrupted during the pendency of of the criminal case, to avoid apprehension on a possible privation of right by prescription. (People v. Layag, G.R. No. 214875, 2016)  2016)  

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  F. CRIMES AGAINST PERSONS Q: What What are the qualifying circ umstances of murder?  A: 1. With treachery, treachery, taking advantage of superior st strength, rength, with the the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, price, reward, reward, or promise. 3. By means means of inundation, inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the the calamities enumerated in the preceding paragraph, or of an earthquake, earthquake,

5. 6.

eruption of a volcano, destructive cyclone, epidemic or other public publi c calamity. With evident premeditation. With cruelty, by deliberately and inhumanly augmenting the suf suffering fering of the victim, or outraging outraging or scoffing at his person or corpse. (Art. 248, RPC)  RPC) 

Q: Is Is the killin g of an eleven-ye eleven-year ar old boy murder?  A: Yes. It is murder qualified by treachery under Art. 248. It is i s not so much as to put emphasis on the age of the victim rather it is more of a description of the young victim’s state of helplessness. Minor children, by reason of their tender years, cannot be expected to put a defense. When an adult person illegally attacks a child, treachery exists. (People exists. (People v Fallorina, GR No. 137347, 2004)  2004)   Q: If the main objective of the offender is to kill a particular person who may be in a building or edifice and and wh en fire is resorted to as a me means ans to accomplis h such goal, what crime is comm itted? (2012 BAR)  A:  The crime committed is murder only. Murder qualified by means of fire absorbs the crime of arson since the latter is an inherent means to commit the former. (People v Baluntong GR No. 182061, 2010; People v. Cedenio Gr No. 93485, 1994)  1994)   Q: Is intent to kill presumed in cases where the victim dies because of a deliberate act of the malefactors?  A: Yes. Intent to kill is conclusively presumed. In such case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law books particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. (Yapyuco v Sandiganbayan GR No. 120744-46 2012) Q: What are the instances embraced in “death or physical injuries inflicted under exceptional circumstances”?   circumstances”?  A: 1. Any legally married married person who having surprised surprised his spouse in the act of comm committing itting sexual intercourse intercourse with another person, shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury; and 2. a parent who having surprised his daughter under eighteen (18) years o off age and living with him, in the act of committing sexual intercourse with her seducer, shall kill any or both of them in the act of immediately thereafter, or shall inflict upon them any serious physical injury (Art. 247, RPC). He RPC). He should not have promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse. (People v Puedan, GR No. 139576, 2002)  2002)  

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: When When does Art . 247 247 operate as a miti gatin g circ ums tance? When does it operate as an a absol bsol utor y cause?  A:  Art. 247 does not define a crime but grants a mitigating circumstance for parricide, homicide and a nd serious physical injuries committed under the exceptional situation. If only less or slight physical injuries were inflicted, Art. 247 shall operate as an absolutory cause. caus e. (People  (People v. Abarca, G.R. No. 74433, 1987)  1987)   Q: W kicked ki cked A’s stomach twice, after which, W picked up a rock to throw at A but was restrained from doin g so. As A stood up, Q punched him on t he stomach, causing causing hi m to coll apse and and cry in pain. Therea Thereafter, fter, A was taken to the hospital. A was diagnosed to be suff ering from " blunt abd ominal trauma with injury t o the jejunum" and was set for operation. A suffered suffered cardiac arrest during th e

operation, and and while h e was re revived vived throu gh cardiopu lmonary resuscitation, he lapsed into a coma after the operation. Due to financial constraints, A was taken out of the hospital against the doctor's orders and eventually, died the next day. While A’s death certificate indicated that the cause of his death was " cardiopulmonary arrest antecedent to a perforated perforated ileum and generalize generalized d peritonitis secondary to mauling," an autopsy p erformed on his remains reveale revealed d that the cause of his death was "ru pture of the aorta secondary to blunt traumatic inj uries. T The he RT RTC C found W and Q guilty beyond rea reasonable sonable doubt of the crime of Death Caused Caus ed in a Tumultuous Affray. The CA modified W and Q’s conviction to that of Homicide u nder Article 249 of the RPC with the mitigating circumst ance of lack of intent to comm it so grave a wrong. With the attending attending facts, a are re Q and C guilty of Homicide or Tumultuous Affray?  A: The SC agreed with the modification of the CA. The elements el ements of Death Caused in a Tumultuous Affray are as follows: (a) that there be several persons; (b) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (c) that these several persons quarreled and assaulted one another in a confused and tumultuous manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained who actually killed the deceased; and (j) that the person or persons who inflicted serious physical injuries or who used violence can be identified. Based on case law, a tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. In the instant case, there was no tumultuous affray between groups of persons in the course of which A died. On the contrary, the evidence clearly established that there were only two (2) persons, W and Q, who picked on one defenseless individual, A, and attacked him repeatedly, taking turns in inflicting punches pu nches and kicks on the poor victim. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression in that fateful incident. Since W and Q were even identified as the ones who assaulted, the latter's death cannot be said to have been caused in a tumultuous affray. Therefore, W and Q’ s act of mauling A was w as the proximate cause of the latter's death; and as such, they must be held criminally liable therefore, specifically for the crime of Homicide. (Wacoy y Bitol v. People, G.R. No. 213792, 2015)  2015)   Q: X, who was seated beside a vendor, suddenly shot Y at the back of his head as the latter was helping his daug hter disembark from a motorcy cle. X fled but was chased by Z, a security security guard of the nearby nearby s chool. X was caught by the police the next day and w as subjected to a paraffin test, where X was positive for g un residue. X denied the allegations allegations and said th at he was sleeping in h is house all morning and that a police officer offered him to test his gu n, and afte afterr firing the gun, he was invited to the police station as sus pect.

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  RTC convicted X with mur der, saying RTC saying that X failed failed to present his wife or his broth er to corr oborate his testimony and to show that it was phy sically impos sible for him to b e at at the place of the incident. In fact, the short distance of 100 meters between the crime scene and X’s house, where whe re he said he was, did not foreclose the possibility of his presence at the crime scene since it would only take around 20 minutes to get to th e place. Is X correctly conv icted for Murder?  A:  Yes. In order to convict a person charged with the crime of Murder, the prosecution must establish the following elements beyond reasonable doubt: (a) that a person was killed; (b) the accused killed him or her; (c) the killing was attended by any of the qualifying circumstances ci rcumstances mentioned in Article 248 of the RPC; and

(d) the killing does not constitute Parricide or Infanticide. One of the circumstances which qualifies the killing to Murder is the existence of treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. In this case, the prosecution was able to prove that X’s attack on   Y was so sudden and executed in such a manner that Y was caught off-guard on what X intended to do. (People v. Parba y Solon, G.R. No. 214506 (Resolution), 2015)  2015)  Q: An eyewitness testified that X fired four (4) (4) gunshots towards Y, resulting to the latter's death. To ensure Y's demise, X appro ached Y and and sh ot him again. Thereafter, Thereafter, accused - appellants fled th e scene. The next next day, Y's body was found near the duhat tree tree,, prompting police offic ers to conduc t an investigation from which w ere gathered gathered the follow ing evidence and information: (a) a piece of bamboo was recovered three (3) meters away from Y's corpse; (b) Y purportedly had a previous misunderstanding with X sometime in 1997, yet the same was settled before the barangay; and (c) Y allegedly allegedly had a drinki ng spree with hi s friends at th e time of the incident.  An aut op sy was likew li kew is ise e cond co nd uc ted on Y's bo dy , rev reveali eali ng that th at t her e wer e fou r (4) in ci sed wo un ds on his left hand, a stab wound on his left chest, and five (5 (5)) gunshot w ounds o n his b ody; that based on the nature and sizes sizes of h is wounds , it was possible that the firearm used was of the same caliber; and that his inj uries could not h ave been been inflicted by a single person. RTC RTC and CA CA convic ted the accused with the crime of Murder with the Use of an Unlicensed Firearm.  Ar e the l ow er c cou ou rt s c or rec t?  A.  A. No.  No. It is undisputed that Y sustained five (5) gunshot wounds which led to his demise, it is unclear uncle ar from the records: (a) whether or not the police officers were able to recover the firearm used as a murder weapon; and (b) assuming arguendo that such firearm was recovered, whether or not such firearm was licensed. The Court notes that the disquisitions of the courts a quo were silent regarding this matter. Having failed in this respect, the Court cannot simply appreciate the use of an unlicensed firearm as an aggravating circumstance. (Manny Ramos, Roberto Salonga and Servillano Nacional v. People of the Philippines; G.R. No. 218466, 2017)  2017)   Q: One evening, several other people were sitting outside F’s house when R arrived and looking for a certain N. When A replied that N wasn't there, R approached A and cocked a gun at him. At that point, accused-appellant accused-appellant S arrived and, without any warning, s hot G in the chest. G was able to run away, and and as S was chasi ng him , F heard another gu nsh ot. Moments later, S return ed alone and left together with R. F tried to co ntact G and when the latter did not r espond, F went to look for him. Eventually, Eve ntually, G was found dead in a kangkong swamp.

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  RTC found S gui lty and apprecia RTC appreciated ted treachery as a qualifying circumst ance. The C CA A affirmed th e ruling and agree agreed d w ith the findin gs of the RTC RTC that the killing of G was attended attended with treachery. The The accused-appellant S claimed that such were acts of self-defense. Was treachery present?  A: Yes. Among the qualifying circumstances found in Article 248 of the RPC is treachery. Under Article 14 of the same Code, there is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure ins ure its execution, without risk to himself arising from the defense which the offended party might make. In People v. Tan, Tan, the Court held that the essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked. In this case, the prosecution was able to prove that S's attack on G was so swift and sudden, and without any warning. (People v. Samuya, G.R. No. 213214,

2015)   2015) Q: Z who slept at at B’s residence heard 4 successive gunshots. Z looked through the open door of B’s house and saw two (2) men armed with .38 caliber revolvers standing a meter away from B. He saw P deliver deliver the fourth shot t o B, but he cou ld not identify the ot her shooter. Thereafter, Thereafter, the two (2)) assa (2 assailants ilants fled o n a motorc ycle. Z broug ht B t o a Hospital. On On the way to the hospital, B told Z that it was P who shot him. At around 11 o’clock in the morning of even date, B died due to gunshot wounds on his head and and trunk . RTC convicted P of the crime of murder and opined that it was attended with treachery. The RTC, however did no t appreciate e evident vident p remeditation. remeditation. Was the murder attended with treachery? treachery?  A: The Court agreed with the findings that P killed B, and that the qualifying circumstance of treachery attended the same. The records show that B was outside when two (2) assailants shot him. During the attack, B had no opportunity to raise any meaningful defense against his assailants; and consequently, he suffered multiple gunshot wounds on his head and trunk, causing his death. (People v. Palanas, G.R. No. 214453, 2015)  2015)  Q: X was walking with Y towards th e mall, whe when n sud denly X stabbed Y repe repeatedly atedly until th e latter latter died. X tried to flee but w as caught by the poli ce and was charged with t he crime of Murder. Z Z,, a witness, testified against against X. RT RTC C convicted him of Murder with qualifyin g circum stance of evident premeditation, which it inferred from the act of X in bringing with him a knife and waiting for the perfect moment to consum mate the plan to kill Y. IIs s the convi ction co rrect?  A:  NO. There is no evident premeditation as there has been nothing offered to establish when and how he he planned and prepared for the same, nor was there a showing that sufficient time had lapsed between his 2018)   determination and execution. (People v. Cirbeto y Giray, G.R. No. 231359. 2018)  Q: What is treachery?  A:  Treachery is the direct employment of means, methods, or forms in the execution of the crime against persons which tends directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected way, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape. In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods, or forms of attack employed by him. (People v. Cirbeto y Giray, G.R. No. 231359, 2018)  2018) 

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: What are the elements of evident premeditation?  A: For evident premeditation to be considered as a qualifying or an aggravating circumstance, the prosecution must prove: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the culprit has clung to his determination; and (c) a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his 2018)   conscience to overcome the resolution of his will. (People v. Cirbeto y Giray, G.R. No. 231359, 2018) Q: What What crime is committed in fir ing a gun?  A: If the gun was fired in a public place and not aimed aime d at

 ALARMS ARMS AND SCANDALS SCANDA LS ( Ar  Ar t. 155, RPC)  AL anybody ILLEGAL DISCHARGE OF FIREARM ( Ar  Ar t. 254, RPC) FRUSTRATED ILLEGAL DISCHARGE (Art . 254, RPC) RPC)

If the firearm was directed at somebody else, fired, without intent to kill and not hit If directed at somebody without intent to kill and bullet  jams

IMPOSSIBLE CRIME (Art . 4, RPC)

If accused fired the gun without knowing that there were no bullets

THREATS (Ar t. 282, RPC) GRAVE THREATS (Ar RPC) 

If gun was pointed to the victim for the th e victim’s family to turn over money in exchange of sparing the victim’s life and the gun was discharged but did not hit the victim

 ATTEMPTED MURDER MURDER OR HOMICIDE HOMICIDE (Art. 248, 249, RPC)  RPC) 

If gun is directed at somebody else with intent i ntent to kill but was not hit or the wound was not mortal

FRUSTRATED MURDER OR HOMICIDE (Art. 248, 249, RPC)  RPC) 

If gun was aimed at somebody with intent to kill, fired and hit the target and the wound was mortal m ortal

Q: Will the subsequent marriage of the offender and the offended party extinguish the criminal action or the penalty imposed in cr imes of rape? Explain. (200 (2002 2 BAR)  A:  Yes. By express provision of law, subsequent valid marriage between the offender and offended party shall extinguish the criminal action or the penalty imposed, although rape has been reclassified from a crime against chastity, to that of a crime against persons. (Art. 266-C, RPC)  RPC)  

Q: Y, a 5-yea 5-yearr ol d min or, was found dead in a sack and after the autopsy conduc ted by th e PN PNP, P, it was found out that the child was raped. Afte Afterr two w itnesses made corrob orated state statements ments pointi ng to X as the perpetrator perpetrator of the crime, the latter latter was charged with t he crime of rape with hom icide. Was the State able to discharge its burden to prove beyond reasonable doubt every fact and circumstance constituting the crime charged?  A:  Yes. When the crime is rape with homicide, there may usually be no living witnesses if the rape victim is herself killed. Yet, the Rules of Court allows circumstantial evidence to establish the commission of the crime as well as the identity of the culprit. Circumstantial evidence may be resorted to when to insist on direct testimony would ultimately lead to setting a felon free. (People v. Villaflores y Olano, G.R. No. 184926, 1 84926, 2012)   2012)

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: What are the necessary elements of statutory rape?  A:  The elements of statutory rape are that: 1. The victim victim is a female under 12 years or is demente demented; d; and 2. The offender has carnal carnal knowledge of the victim. Considering that the essence of statutory rape is carnal knowledge of a female without her consent, neither the use of force, threat or intimidation on the female, nor the female’s deprivation of reason or being otherwise unconscious, nor the employment on the female of fraudulent machinations or grave abuse of authority is necessary to commit statutory rape. Full penile penetration of the female’s genitalia is not likewise required, because carnal knowledge is simply the act of a man having sexual bodily connections

with a woman. (People v. Teodoro, G.R. No. 175876, 2013).  2013).   Q: X was was convic ted of statutory rape by the RTC. RTC. While the qualifying circu mstance of relationship was not proven, the victim’s testimony showed that her age was only 11 years at the tim e of the rape. X failed to object to the said testimony regarding the victim’s age. Should X be held guilty only of simple rape given that during the trial, the victim’s birth certificate was not submitted as evidence?  A:  Yes. The Pruna Pruna   guidelines provides that in proving the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly clea rly admitted by the accused and that the failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. Since the only evidence evid ence offered to prove the victim’s age was her own testimony, it was necessary for X to clearly admit to the victim’s alleged age for the testimony to be admitted. X’s mere failure to object to the ttestimony estimony reg regarding arding the victim’s age cannot be taken against him. him. (People v. Lupac, G.R. 182230, 2012). Q: What What is th e rule on sweet heart defense as an affir affir mative defense in th e crime of rape?  A: The “sweetheart defense” is a much abused defense that rashly derides  the intelligence of the Court and sorely tests its patience. Being an affirmative defense, it must be established with convincing evidence by some documentary and/or other evidence like mementos, love letters, notes, pictures and the t he like. Likewise, the “sweetheart theory” is effectively an admission of carnal knowledge of the victim and consequently places on him the burden of proving the supposed relationship by substantial evidence. To be worthy of judicial acceptance, such a defense should be supported by documentary, testimonial or other evidence. (People vs. Grande, G.R. No. 170476, 2009)  2009)   Q: A is a 29-year-old woman with a mental age of a six to seven-year-old. One evening, B, her neighbor, lured A to his house and succeeded to have carnal carnal know ledge with her. C Can an B be found guilty of rape?  A: Yes. B can be found guilty of rape. Carnal knowledge with a [person with intellectual disability] is rape under paragraph 1 of Article 266-A of the RPC because a mental retardate is not capable of giving her consent to a sexual act. It is sufficient for the State to establish, one, the sexual congress between the accused and the victim, and, two, the [intellectual disability] of the victim. The Court has consistently held that carnal knowledge of a female with a mental age below 12 years of age, as rape of a woman deprived of reason. (People v. Butiong, G.R. No. 168932, 2011) 2011)  

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: A was sleeping when s he was awake awakened ned by so meone who w as touching her feet. S She he saw that it was B, who was pokin g her neck with a knife. She She resisted but B th reatened reatened to hurt A. B dr agged  A out o uts s ide id e th the e ho use us e and br ou gh t A t o a n nearb earby y t ree, w her e he in injec jec ted an u nkno nk no wn su bstan bs tan ce i nt o A’s stomach. A fell f ell unconscious. Upon regaining conscio consciousness, usness, she ffound ound herself naked, and her vagina was aching and soaked with w hite and red substance.  A all eges that th at B r aped her b ut B in terpo ter poses ses that th at tther her e is n o pr oo f th at i t was h im due du e to t he fac t th at  A w as said s aid to be unc un c onsc on sc io us and th eref or e co ul d no t b be e sur s ur e th at s he w as i n f act raped rap ed or th at i t was B who did such. Was Was B sufficiently pr oven guilty of raping A?  A:  Yes. The commission of the rape was competently established although A had been unconscious during

the commission of the act. Conviction for rape may be based on circumstantial evidence when the victim cannot testify on the actual commission of the rape as she was rendered unconscious when the act was committed, provided that more than one circumstance is duly proved and that the totality or the unbroken chain of the circumstances proven lead l ead to no other logical conclusion than the appellant’s guilt of the crime charged. (People charged.  (People v. Belgar, G.R. No. 182794, 2014) Q: KKK executed a Complaint-Affidavit, alleging alleging that her husb and raped her at their r esidence and then boxed her should er days after after the rape incident for refusing to have sex with him. The accused accused posits that consent to copulation is presumed between cohabiting husband and wife unless the contrary is prov ed and that the standards for determining the presence of consent or lack thereof must be adjusted on the ground that sexual community is a mutual right and obligation between husband and w ife. C Can an rape exist within a marriage?  A: Yes. R.A. No 8353 is one of the measures that eradicated the archaic notion that marital rape cannot exist exist because a husband has absolute proprietary rights over his wife’s body and thus her consent to every act of sexual intimacy with him is always obligatory or at least, presumed. Rape, as a form of sexual violence, exists within marriage. A man who penetrates her wife without her consent or against her will commits sexual violence upon her. He cannot be permitted to violate this dignity by coercing c oercing her to engage in a sexual act without her full and free consent. CEDAW and its accompanying Declaration, defines and penalizes the act as rape under R.A. No. 8353. (People v. Jumawan, G.R. No. 187495, 2014) 20 14)   Q: X was on her way home when Y arrived and offered to take her home. However, Y took X to a motel and allegedly allegedly r aped her. Y then dropped her off at a public m arket where X proce proceeded eded to buy groceries before going home. Y was then charged with Rape. In his defense, Y claimed that they were sweethearts and that the sexual act was consensual. Witnesses, including including two of X’s friends, supported th e claim that the two were in a relationship. Ca Can n Y be convicted o f Rape? Rape?  A: NO. In rape cases, the victim's sole testimony must still stand the test of credibility. In this case, Y’s allegation of relationship with X was overwhelmingly corroborated by his other witnesses. The finding of a then subsisting relationship between the parties raises suspicions on the truthfulness of X’s testimony, wherein she vehemently denied having a relationship with the accused. Furthermore, the conduct of X immediately following the alleged sexual assault is significant in establishing the truth or falsity of the charge of rape. The value of a witness's testimony testi mony should be compatible with human knowledge, o observation, bservation, and common experience, such that whatever is repugnant to these standards becomes beco mes incredible and must lie outside judicial cognizance. Considering the totality of the evidence presented in this case, there is doubt whether Y employed force or intimidation upon X during their sexual encounter. (People v. Rubillar Jr. y Gaberon, G.R. No. 224631, 2017)  2017) 

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 ATENEO  AT ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: X poi nted a gun at Y, a 15-year-old 15-year-old girl , and threatened to kil l her and h er parents. X then dragged Y to a barn and raped her. Y told t he incident to Z but wished for the latter to remain silent, Z obliged. Y was unable unable to focus on her studies so s he moved to the city to conti nue her studies. X was able to track her dow n and made Y his sex slave by forcing h er to take shabu and then sexually abusing her. Eventually, Y got hooked on drugs and portrayed herself as X’s paramour and decided to live together . The illicit relationship was reported to the barangay by X’s wife and Y’s parents. Y eventually eve ntually u nderwent rehabilitation and, along w ith h er parents, filed Rape a against gainst X. RTC convicted him with th e crime of rape, which t he CA a RTC affirmed ffirmed saying that assu ming arguendo that he indeed eventually had a relationship with Y, their first sexual encounter was without the

latter's consent and was attended with force and intimidation as he pointed a gun at her while satisfying his lustful d esires. Shall the conviction f or the crime of Rape be upheld?  A: Yes. The gravamen of Rape is sexual intercourse with a woman against her will. In this case, the prosecution was able to prove beyond reasonable doubt the presence of all the elements of Rape by sexual intercourse under Article 266-A (1) of the RPC, as amended by RA 8353. Through Y's positive testimony, it was indeed established that on their first sexual encounter, encount er, X threatened Y, removed her lower garments, covered her mouth, and proceeded to have carnal knowledge of her without her consent. The RTC, as affirmed by the CA, found Y's testimony to be credible, noting further that X failed to establish any ill motive on her part which could have compelled her to falsely accuse him of the aforesaid act. In this relation, case law states that the trial court is in the t he best position to assess and determine the credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the same. (People same.  (People v. Ejercito, G.R. No. 229861, 2018) Q: What are the elements elements of Rape?  A:  Article 266-A of the RPC states that Rape is committed: 1. By a man man who shall have have carnal knowledge of a woman under any of the following circumstances: circumstances: a. Through force, threat, or intimidation; b. When the the offended party is deprived of reason or or otherwise otherwise unconscious; c. By means means of fraudulent m machination achination or grave abuse of authority; authority; and d. When the offended offended party is under twelve (12) (12) years o off age or is demented, even though none of the circumstances mentioned above be present. 2. By any person who, under any of the circumstances mentioned in paragra paragraph ph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (People v. Ejercito, G.R. No. 229861, 2018)  2018)  Q. What shoul d be the charge wh en both th e elements elements o f Rape under Ar ticl e 2 266-A 66-A a and nd Section 5(b) of RA 7610 are present?  A:  Between Article 266-A of the RPC, as amended by RA 8353 and Section 5 (b) of RA 7610, the Court deems it apt to clarify that Y should be convicted under Article 266-A. Verily, penal laws are crafted by legislature to punish certain acts, and when two (2) penal laws may both theoretically apply to the same case, then the law which is more special in nature, regardless of the time of enactment, should prevail. RA 8353 is not only the more recent statutory enactment but more importantly, the more comprehensive law on rape; therefore, the Court herein clarifies that in cases where a minor is raped through sexual intercourse, the provisions of RA 8353 amending the RPC ought to prevail over Section 5 (b) of RA 7610 although the latter also penalizes the act of sexual intercourse against a minor. (People v. Ejercito, G.R. No. 229861, 2018)  2018)  

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 ATENEO  AT ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: One evening, AAA, who was sleeping beside her brother BBB, suddenly woke up with X, her father, already already on to p of her, and the latter's penis already inside her v agina. Startled Startled by th e pain she felt in her vagina, AAA pushed X and scampered away from him in or der to move clos er to BBB. This left X with no choice but to leave the room. The incident was repeated twice.  Af ter the th e 3rd 3r d in ci den t, AA AAA A fi final nally ly had the th e c ourag ou rag e tto o rep or t the th e f or ego in ing g in ci den ts to the th e p ol olic ic e.  AA A w as tthen hen examin exam in ed b by y a p hysi hy si ci an w ho foun fo un d h er tto o have h ave s us tai ned lacerat lac erat io ns in her hymen hy men which could have been caused by the penetration of a hard object, such as an erect penis. X interposed the defenses of denial and alibi. What What is the crim inal liability of X?  A: X is guilty beyond reasonable doubt of two (2) counts of Qualified Rape and one o ne (1) count of Attempted

Qualified Rape. Statutory Rape under Article 266-A (1) (d) is committed by having sexual intercourse with a woman below twelve (12) years of age regardless of her consent, or o r lack of it, to the s sexual exual act. Proof of force, threat, or intimidation, or consent of the offended party is unnecessary as these are not elements of statutory rape, considering that the absence of free consent is conclusively presumed when the victim is below the age of 12. The law presumes that the offended party does not possess discernment and is incapable of giving intelligent consent to the sexual s exual act. Thus, to sustain a conviction for statutory st atutory rape, the prosecution must establish the following: (1) the age of the complainant; (2) the identity of the accused; and (3) the sexual intercourse between the accused and the complainant. c omplainant. The foregoing acts of Rape shall be qualified pursuant to Article 266-B (1) of the RPC if: (1) the victim is under eighteen (18) years of age; and (2) the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. In the case at bar, the Court agrees with the finding of the courts a quo that the prosecution was able to prove that X: (a) had carnal knowledge of her without her consent on two (2) separate occasions; and (b) attempted to have carnal knowledge of her on May 17, 2009, but was stopped by a reason other than his own desistance, i.e., BBB's intervention. Suffice it to say that X's flimsy defense of denial and alibi cannot prevail over the positive and categorical testimony of AAA identifying him as the perpetrator of the crimes. (People of the Philippines v. Godofredo Comboy Y Cronico; G.R. No. 218399, 2016)  2016)  Q: AAA, her mother and sister, and her sis ter's com mon-law spouse, X, lived at the same house. One afternoon, afternoon, AAA w as in the ho use of a neighbor , when suddenly, X, who was drunk at the time, pulled her into their hou se while AAA's mother and sis ter were not around. Once inside, X orde ordered red  AA A to take tak e o ff her cl ot othes hes , c overed ov ered her mout mo uth, h, and then th en pr oceede oc eeded d to hav e carn c arn al k no wl edge edg e o f her. Later Later that day, AAA's mother noticed that AAA was pale, bruised, limping, and her dr ess soiled, making her suspect that X had something to do wi th AAA's disheve disheveled led appea appearance. rance. S Such uch sus picion was later later conf irmed when AAA admitted to h er sister that X rape raped d her, prompting AAA's mot her and sister to brin g her to the hospital for m edical exa examination. mination. They also went to the polic e station to report the matter. During They During the trial, a psychiatric cons ultant testified that: (a) while AAA is alre already ady 20 years years old, she has a mild to moderate mental retardation, with a mental age of 6-7 years years ol d; (b) children of this mental age can can recall and narrate e events vents if coupled with subtle prodding; and (c) AAA has difficulty in answering questions and can only respond in p hrases; (d) AAA had no o vertures or disto rtions in her perceptions or memory; and (e (e))  AA A was not no t su suff ff eri ng fr om psyc ps yc ho si s, wh ic h mean t that th at sh e was in to uc h wi th real it y and no t hallucinating strangely. What What is the crimi nal liability of X?

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021   A:  X is guilty beyond reasonable doubt of the crime of Rape as defined and penalized penali zed under Art. 266-A (1) of the RPC. The Court agrees with the findings of both the RTC and the CA that the prosecution established, among others, that: (a) on May 1, 2006, AAA was in her neighbor's house when X pulled h her er into their own house; (b) once inside, X covered her mouth then had carnal knowledge of her; (c) AAA confessed to her sister that X took advantage of her; and (d) a medical examination confirmed that AAA was indeed raped.  AAA's mental mental ret retardation ardation cannot be taken into account. It must be stressed stressed that in all cr criminal iminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him to ensure ens ure that his due process rights are observed. Thus, every indictment must embody the essential elements of the crime charged with reasonable particularity as to the name of the accused, the time and place of commission of

the offense, and the circumstances thereof. In this case, suffice it to say that AAA's mental retardation, while proven during trial, cannot be considered in view of the fact that it was not specifically alleged in the Information charging X of Rape. (People of the Philippines v. Mario Galia Bagamano; G.R. No. 222658, 2016)   2016) Q: Respondent X is charged with the crime of Statutory Rape. It is alleged that, on two separate instances, he forced forced himself upo n his 9-year-old 9-year-old niece. S Should hould the con viction be upheld?  A:  Yes. There is no plausible reason for X’s niece to testify against her own relative. Additionally, it is noted that, for Statutory Rape, proof of threat or force are not necessary n ecessary elements of the crime, considering conside ring that the absence of consent is presumed when the victim is below 12 years. Furthermore, the Court found that the acts must be upgraded to Qualified Statutory Rape, because X is a relative by affinity within the third civil degree. (People v. De Guzman y Buhay, G.R. No. 234190, 2018)  2018)   Q: Accused-appellants A and C intercepted AAA, threatened her with a bladed weapon, dragged her to a cottage at a nearby beach resort, and b ound her hands and fee feet. t. Thereafte Thereafter, r, they removed her clothes and placed her her on t he floor. A then mounted AAA and inserted his penis int o her vagina.  Af ter A sati s atisf sf ied hi s l ust, us t, C to ok ov er an and d r aped her . Thereaf ter , accu sed -app -appell ell ant s left l eft AA A at t he cottage. An hour later, C returned and dragged AAA to a store. There C undressed her again, mounted her, and inserted his penis in to her vagina. Afterwards, AAA was returned to the cottage. The next next day, AAA's fathe fatherr fou nd her cr ying at the c ottage. The R RTC TC found accused appellants appellants g uilty beyond reasonable doubt of the crime of r ape which was affirmed by the CA. Accused-appellants Accused-appellants appealed. appea led. D Decide ecide whether or not the presence of either circums tance - "us e of a deadly weapon" or " by two or more persons" - qua qualifies lifies the crime.  A: Given that the rape occurred during the effectivity of the old rape provision, it shall be controlling in the case. Under Art 335, “Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. Either circumstance is qualifying”. When the two circumstances are present, there is no legal basis to consider the the remaining circumstance as a generic aggravating circumstance for either is not considered as such under Article 14 of the Revised Penal Code enumerating what are aggravating circumstances. (People of the Philippines v.  Arugta, G.R. G.R. No. 213216, 2015) 2015)   Q: Whether Whether or not force employed in the commi ssion of the crime of rape must be irresistible?  A:  In this case, records reveal that accused-appellants threatened AAA with a bladed instrument and tied her up before having carnal knowledge of her without her consent. Jurisprudence holds that force or intimidation, as an element of Rape, need not be irresistible; as long as the assailant's objective is accomplished, any question of whether the force employed was irresistible or not becomes irrelevant.

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Intimidation must be viewed from the lens of the victim's perception and judgment and it is enough that the victim fears that something will happen to her should she resist her assailant's advances. In this regard, case law provides that the act of holding a bladed instrument, by itself, is strongly sug suggestive gestive of force or, at least, intimidation, and threatening the victim with the same is sufficient to bring her into submission. (People of the Philippines v. Arugta, G.R. No. 213216, 2015)  2015)   Q: One evening, AAA joined her co-worker for a vacation in the province of Nueva Ecija as they were both laid off from work, and they stayed at the one-storey house of the latter's 62-year old mother, BBB. Therea Thereat, t, AAA would sleep at the papag papag w hile BBB slept on a m attre attress ss on the flo or. At around 2:30 in the morning of January 5, 199 1996, 6, AAA awoke to the sound of BBB's pl eas for mercy.

 Ai ded b y the t he k kero erosen sen e lamp lam p p lac ed on o n th e flo or , AAA saw BB B bei ng mau mauled led and stabb st abb ed t o dea death th by X and Y. Y. Thereafter, Thereafter, X approach ed AAA and restrain ed her arms, whil e Y pulled AAA 's pants and underwear down and started having carnal know ledge of her. After After Y was done, he switched places with X and the latter latter took his turn ravishi ng AAA.  As AA A was abl e t o fi figh gh t bac k by sc rat ch in ing g X's bac k, X p unch un ch ed her o n th e l eft si de of her face fac e while Y hit her left left jaw with a piece of wood. AAA then lost cons ciousness and wok e up in a hospital, while BBB succum bed to her injuries. What What is the crimi nal liability liability of X and Y? Y?  A:  X should be convicted of one (1) count of Qualified Rape and one (1) count of Homicide. This will no longer affect Y as he had already withdrawn his appeal prior to the promulgation of this decision. To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on o n the victim is mortal and could cause the death of the victim without medical intervention or attendance. On the other hand, under Art. 335 of the RPC, the elements of Rape are:(1) the offender had carnal knowledge of the victim; and (2) said carnal knowledge was accomplished through the use of force or intimidation; or the victim was deprived of reason or otherwise unconscious; or when the victim was under twelve (12) years of age or demented. The provision also states that if the act is committed either with the use of a deadly weapon or by two (2) or more persons, the crime will be Qualified Rape, necessitating the imposition of a higher penalty. (People of the Philippines v. Alberto Alejandro Y Rigor And Joel Angeles Y De Jesus; G.R. No. 225608, 2017)  2017)   Q: AAA was playing with C, her her cous in and the daughter of her un cle, M M,, on the second flo or of t he latter’s house. At the time, M happened to also be at the second floor of the house. When C went to the ground floor to urin ate, ate, M approached approached AAA and began to r emove his shor ts. The Therea reafter, fter, he laid  AA A, rai sed her s ki rt and p ul led down do wn her un der wear . M in ser ted h is pen penis is in to h er va vagi gi na, c caus ausin in g  AA A tto o feel fee l p pain ain and to sh ou t ffor or hel p ffro rom m C. When appellant rea When realized lized that his daughter C mi ght be returning anytime, he let AAA go. AAA did not recount her ord eal eal to anyo ne until s he complained to h er mother, CCC CCC,, of the pain in her vagina. AAA then confessed that M inserted his penis into her vagina. While M’s other niece, BBB, was with him in his house, he inserte inserted d his p enis into her mout h and threate threatened ned her not to tell anyone what he had done. BBB did not report th e incident immediately because she fea feared red M. M was convicted for Simple Rape and for Ra Rape pe by Sexual Sexual As sault. Should Should t he testimonies of A AA and BBB be given weight?

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021   A:  Testimonies of child-victims are normally given full weight and credit, since when a girl, particularly if she is a minor, says that she s he has been raped, she says in effect all that is necessary to show that rape has in fact been committed. When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true. Youth and immaturity are generally badges of truth and sincerity. A young girl’s revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere concoction.”   concoction.”

In proving the age of victims, there must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused." Documents such as her original or duly certified birth certificate, baptismal certificate or school records would suffice as competent evidence of her age. (Here, there was nothing on record to prove the minority of "AAA" other than her testimony, appellant’s absence of denial, and their pre-trial pre -trial stipulation. The prosecution also failed to establish that the documents referred to above were lost, destroyed, unavailable or otherwise totally absent.) (People v. Mendoza, G.R. No. 205382, 2014) 2 014)   Q: X, the husband of Y’s sister, raped Y (a 16 - yearyear-old old gi rl) on two occasions . After complaining to her mother about abdominal pains, Y was brought to the doctor who discovered that she was 5 to 6 months pregnant. The doctor also declared that she was suffering from a mild menta mentall retardation with an in telligence quotient equivalent to a nine-ye nine-year-old ar-old child. RTC RT C ruled tha thatt X is guilty of Simple Rape Rape as the qualifying circum stance of relationship by affinity was not alleged in the i nformation. CA ruled that X shoul d be conv icted for Qualified Qualified Rape as (a) the state of mental retardation retardation of Y was completely established on the account of the testimo ny and psychiatric evaluation of the doctor and (b) X failed failed to dispute the mental reta retardation rdation of Y during trial. Should Should the qualifyin g circum stance be considered?  A:  NO, X shall only be convicted for fo r Simple Rape. The CA erred in appreciating the qualifying circ circumstance umstance of X knowledge of Y’s mental disability at the time of the commission of the crime, there being no sufficient and competent evidence to substantiate the same. Such qualifying circumstance, however, must be sufficiently alleged in the indictment and proved during trial to be properly appreciated by the trial court. It must be proved with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its qualified form. The fact that X did not dispute Y's mental retardation during trial is insufficient to qualify the crime of rape, since it i t does not necessarily create moral certainty that he knew of her disability at the time of its commission. It is settled that the evidence for the prosecution must stand or or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. Additionally, mere relationship by affinity between X and Y does not sufficiently create moral certainty that the former knew of the latter's disability. (People v. Niebres, G.R. No. 230975. 2017)   Q:  Q:  After Af ter r esp on di ng t o a rep repor or t and resor res or ti ng t o a car chase, ch ase, th e off icers ic ers w ere abl e to b blo lo ck i ts p ath. ath . Upon order of t he officers, all the riders stepped out of the vehicle except for t he driver. Police Police X, who was fully armed, opened the door opposite the driver’s side to check on him, but as soon as he did, the driver shot Police X thrice in the chest. Was there treachery qualifying the killing to murder?   murder?  A:  None. Pitulan was convicted of direct assault with homicide. Police X was a fully armed and trained police officer; his training and police work would have prepared him for the possible hostilities that a person’s impending arrest may commit. The previous car chase and  the accused's refusal to heed police

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  orders should have warned him of possible violent behavior to evade arrest. When a police officer had been forewarned of brewing violence, he or she could not n ot have been completely taken by surprise by the attack. In such instance, therefore, treachery could not have attended the killing. (People v. Pitulan y Briones, G.R. No. 226486, 2020)

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  G. CRIMES AGAINST PROPERTY Q: X, armed with a long bladed weapon, entered  Y’s  Y’s house.  house. Y’s  Y’s wife  wife shouted “magnanakaw!” “magnanakaw!” and  and X stabbed  Y’s  Y’s   wife, and stole from  Y’s  Y’s   wallet. X was charged with robbery with homicide. X maintains that the Prosecution did not prove that violence or intimidation was employed in the course of the robbery. X argues that he could not be held liable for robbery by using force upon things considering that the culprit had neither broken any wall, wall, roof, floor, door or window to gain e entry ntry in to the house nor entered ente red the house throug h an opening no t intended for entrance. IIff at all, he could be liable only for

the separate crimes of theft and homicide, not of the composite crime of robbery with homicide. Prosecution counters that the evidence showed that the X’s X’s   principal intent had been to rob the victim’s hous victim’s  hous e, with th e homicide being perpetrated as a mere mere incident of the robbery. Could X be held liable for robbery with h omicide, instead of the separate separate crimes of theft and homicide?  A:  Yes. The fact that X was armed with the long-bladed weapon, which was undoubtedly a deadly weapon, competently proved the presence of violence or intimidation against persons that qualified the offense as robbery instead of theft. For sure, too, the patent intent of the appellant was originally to commit robbery, with the homicide being committed only in the course or on the occasion of the perpetration of the robbery.  As the the rrecords ecords show, Y was was awaken awakened ed by someone shouting "Magnanakaw!" The shout was most prob probably ably made by the victim, whom X then stabbed in order to facilitate his escape. (People escape.  (People v. Esugon y Avila, G.R. No. 195244, 2015).  2015).   Q: H How ow is Robbery with Rape committed?  A: The offender must have the intent to take the personal property of another under circumstances that makes the taking one of robbery, and such intent must precede the rape. If the original plan was to commit rape, but the accused after committing the rape also committed robbery when the opportunity presented itself, the robbery should be viewed as a separate and distinct crime. (People v. Moreno, GR No. 140033, 2002)   2002) Q: A and his family w ere inside their car, stuck in tr affic. B suddenly appeared at at the side of the car, poking a gun at him, asking for his phone. B then shot him after getting the phone. D Despite espite medical intervention, A died. Is Is the RTC and the CA correct in findi ng B gu ilty o f Robbery with Homicid e?  A: YES. The special complex crime of robbery with homicide takes place when a homicide is committed either by reason, or on the occasion, of the robbery. To sustain a conviction for robbery with homicide, it must be proven that there was: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed. Furthermore, Homicide is said to have been committed by reason or on occasion of robbery if it was committed: (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to t o eliminate witnesses in the commission of the crime. Thus, the intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery. It was established that B poked his gun at A, took the latter’s phone, and thereafter, shot him, resulting his death. (People v. Balute y Villanueva, G.R. No. 212932, 2015)  2015)  

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 ATENEO  AT ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: Respondents planned to rob the house of A. They used a knife to get through the fence, destroyed the knob of the kitchen door and gained entry, where they took valuable items of A. When When  A wo ke up, up , he h e w as assaul ass aul ted and st abb ed by on e o off the th e r esp on den ts, ts , w hi ch led to hi s deat h. Ar e the respondents respondents gu ilty of the crime of Robbery with Homicide?  A:  Yes. The elements for the crime of robbery with homicide are: (a) the taking of personal property is committed with violence or intimidation against persons; pe rsons; (b) the property belongs to another; (c) the taking is animo lucrandi or with intent to gain; and (d) on the occasion or by reason of the robbery, homicide was committed. A conviction requires that the robbery is the main purpose pu rpose and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life, but the killing may occur before, during or after the robbery.

It was established that the respondents were all armed with knives when they broke into the house of A, took personal properties, and in the course thereof, stabbed A, resulting to his death. (People v. Palma y Varcas, G.R. No. 212151. 2015)  2015)   Q: While A, B, C and D were robbing a bank, poli cemen arrived. A crossfire ensued between the bank robbers and the respondi ng pol icemen, a and nd X, one of the policemen, was killed. What What crim e or cr imes, if any, had been committ ed? Explain. (20 (2009 09 BAR)  A: The crimes committed are Robbery with Homicide, a single indivisible offense, and Direct Assault with Multiple Attempted Homicide, a complex crime. Robbery with Homicide was committed because one of the responding policemen was killed by reason or on occasion of the robbery being committed. The complex crime of Direct Assault with Multiple Attempted Homicide was committed in respect of the offender’s firing guns at the responding policemen who are agents age nts of persons in authority performing their duty when fired at to frustrate such performance. (Art. 294(1), RPC; People v. Ladjaalam, G.R. Nos. 136149-51, 136149 -51, 2000) 2000)   Q: Suppose Suppose in t he course of th e robbery, be before fore the policemen arrived, B shot and killed A following a heated heated disagreement disagreement on w ho sho uld carry the money bags, what would be the criminal liability of B, C and and D? Expl ain.  A: B would be liable for Robbery with Homicide since killing killi ng A is considered to be by reason of robbery. C and D would be liable for robbery only since they conspired upon committing robbery only  – unless  – unless they were present with A and B and could have prevented the killing, in which case they shall also be liable for Robbery with homicide even if they did not no t actually kill B. (Art. 294(1), RPC)  RPC)  Q: On On her way home, X saw saw an injured pu ppy. Since the puppy did no t have a collar, she brought it home so s he could have it as a pet. H Her er son in fact begged X to keep the pup py. The following day, X bought a collar for t he puppy and br ought i t to a veterina veterinarian rian for treatment. Did Did X incur criminal liability in brin ging the pup py home as a pet? D Did id she incur civil liabili ty? (2010 (2010 BAR BAR))  A: Yes, X incurred criminal liability for the crime of simple theft. Since Article 308 of the Revised Penal Code used the words personal property without qualification, it follows that all personal properties as understood in the context of the Civil Code, may be the subject of theft. The puppy is personal property which is susceptible of taking and has pecuniary value. She took it with intent to own it, hence, with intent to gain. She also may incur civil liability if the owner of the puppy would incur loss due to non-restitution or return thereof to the owner. Finding any property of value, legally regarded as lost property, p roperty, would constitute theft if the finder failed to deliver the same to local authorities or to its owner. Once she is found liable for theft criminally, she will also be civilly liable. (Laurel v. Abrogar, G.R. No. 155076, 2009, 200 9, RPC)  RPC) 

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 ATENEO  AT ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: Can Can international telephone calls be an o bject of theft?  A:  Yes. Any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation are considered personal properties and can be the t he subject of theft under the RPC. (Laurel v. Abrogar, G.R. No. 155076, 2009) 20 09)   Q: What What determines determines the consum mation of theft?  A: It is consummated upon the voluntary and malicious taking of the property, which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation sit uation that he could dispose of it once. There is no crime of frustrated theft. (Valenzuela v. People, GR No. 160188, 2007)

Q: How is Qualified Theft committed?  A: (DAMF) 1. If theft is committed by a Domestic servant; 2. If theft is committed with grave A grave Abuse buse of confidence; 3. If the property stolen is a Motor vehicle, mail matter, large cattle, coconuts taken from the premises of a plantation, or fish taken from a fishpond or fishery ; or 4. If property is taken on the occasion of Fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance. (Art. 310, RPC as amended by RA 120 and BP 71, 1980) Q: X lives lives with his l ong-time girlfriend Y in a condom inium in Makati. Makati. He He has been been secretly saving money in an envelop e under their bed to bu y her an engagement ring. One day, day, while Y was cleaning their room, she fou nd the envelope, took the money, and left X. As prosecutor, what crim e, if any, wou ld yo u charg e Y? E Expl xpl ain. (2010 (2010 BAR)  A:  Y can be prosecuted for qualified theft. She took away personal property belonging to another, without consent. The fact that this property was money supports a theory that she had intent to gain. Furthermore, she committed this with grave abuse of confidence, as she was trusted by X and they shared a house together. However, Y can invoke Art. 332, which says that theft between spouses only gives rise to civil liability. As held in the case of People v. Constantino, common-law spouses are included in the term spouses, as used in Art. 332. (Art. 310, 332, RPC) Q: Forest Forest Ranger Ranger A w as patrolling a Wa Watershed tershed when he noticed a big pi le of cut lo gs outsi de the gate.. He then gate then saw X & Y coming out of the gate with so me more newly- cut logs. He apprehe apprehended nded X & Y and charged them with the proper offense. What is that offense? (2004 BAR)  A: The offense is qualified theft. Sec. 68 of PD 705 penalizes any person who directly or indirectly cuts, gathers, removes, or smuggles timber, or other forest products from any of the public forest. The watershed is protected under the said law. (Sec. law.  (Sec. 68, P.D. 705) Q: X was was the President and Chairman of the Board o f Trustees of Company A. X allowed his son Y to tap into the electricity and water supply of Company A. When X died, Z succeeded him as President and filed a criminal complaint against Y for qualified theft, attended by the qualifying circumstance of grave abuse of confidence. Y argues that he was explicitly allowed by X to use such electricity and w ate aterr supply and no oppo sition w as aired aired by anyone. C Can an Y be convic ted with qualified theft?  A:  No. The elements of lack of owner's consent and intent to gain are evidently absent in this case. First, Y was permitted by X to tap into the electricity and water supply. As such, Y had no criminal intent to appropriate the personal property as he acted on the faith of his father's authority, on behalf of Company  A. There is no theft where the taker honestly and in good faith believes the th e property is his own or that of

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  another, and that he has a right to take possession of it for himself or for another". His bona fide belief b elief that he had authority from the real owner of the electricity and water supply will not make him culpable of the crime of qualified theft because he was acting with a color of authority or a semblance of right to do such act. Second, The Board of Trustees clothed X with such apparent authority to act on behalf of Company A. By giving X apparent authority, the Board of Trustees cannot now no w deny and repudiate the legal effect of X’s consent to use the electricity and water supply. The element of lack of owner's consent is thus absent in this case. Thus, the case should be dismissed. (People v. Delos Santos, G.R. No. 220685, 2017) Q: While working as a housemaid, Respondent X took her employer’s jewelry amounting amounting to more than P1 million. X claimed that she was tricked into do ing so via a phone call that her employer had

gotten into an accident and needed needed to be d elive elivered red to a third party. After delivering the jewelry, she returned to her employer. Both the RTC and the CA convicted X of the crime of Qualified Theft. X claims that her low educational atta attainment inment must be a basis to pr esume that she was not full y aware of her actions. Furthermore, she maintains maintains that her non - flight manifests her lack of intent to gain. Decide.  A: No, her excuse that she was tricked cannot be given credence, especially in view of the fact that her employer had explicitly warned her against scammers and to not entertain such calls. Jurisprudence provides that intent to gain can be established through the overt acts of the offender, and is presumed from the proven unlawful taking. Actual gain is irrelevant. ir relevant. (People v. Manlao y Laquila, G.R. No. 234023, 2018) Q: Company Company V ordered diesel fuel from Company U, owned by L. C is a truck driver employed by L and was dispatched to deliver such diesel fuel to Company V. Later that day, it was found that Company V never never received their order. The NBI NBI age agents nts found t he aba abandoned ndoned lo rry truck emptied of the diesel fuel. Under the foregoing premises, L filed a complaint against C for Qualified Theft. Is C guilty o f the crime Qualified Theft? Theft?  A: Yes. It was sufficiently established that the diesel fuel loaded into the truck driven by C for delivery to Company V was taken by him, without the authority and consent c onsent of L, the owner of the di diesel esel fuel, and that C abused the confidence reposed upon him by L, as his employer. (Candelaria v. People, G.R. No. 209386, 2014) Q: What What are the elements of estafa with unfaithful ness?  A:  (DAD) 1. Offender has an onerous obligation to D eliver something of value; 2. He A He Alters lters its substance, quantity, or quality; and 3. Damage or prejudice capable of pecuniary estimation is caused to the offended party pa rty or third person/s person/s.. (Art. 315(1)(a), RPC) Q: What What are the elements of estafa with abuse of confidence?  A: (OMPD) 1. Money, goods, or other personal personal property is received by by the offender offender in trust, or on commission, or for administration, or under any other Obligation involving the duty to make delivery d elivery of, or to return the same; 2. Offender Misappropriates or converts such money or property, pro perty, or denies receipt of the same; 3. Such misappropriation, conversion, or denial denial is to the Prejudice of another ; and 4. There is Demand made by the offended party to the offender. o ffender. (Art. 315 (1)(b), RPC)

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Intent to defraud is not a necessary ingredient of embezzlement under Art. 315(1)(b) of the RPC. It is the breach of confidence or infidelity in the conversion or diversion of trust funds that takes the place of the usual element of fraud or deceit. deceit . (Dayawon v. Judge Bautista, AM No. MTJ-00- 1309, 2000) Q: What What are the elements of estafa by taking undue advantage of the sig nature in blank?  A: (BDWD) 1. The paper with the offended party’s p arty’s signature is in B lank; 2. The offended party Delivered the same to the offender; 3. The offender Wrote a document  document above the offended party’s signature without authority to do so; and 4. The document document so written creates a liability of, or   causes causes   Damage to the offended party or to third

person/s. person/ s.  (Art. 315 (1)(c), RPC) Q: What What are the ways of comm itting estafa by means of d ece eceit? it?  A: 1. By using fictitious fictitious name, or falsely pretending to possess power, influence, qualification, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; 2. By altering the quality, fineness, or weight of anything pertaining to his ar artt or business; 3. By pretending to have bribed bribed a any ny Government employee; 4. By post-dating post-dating a check, or issuing a check in paymen paymentt of an obligation when the the offender h had ad no funds in the bank or the funds were insufficient to cover the amount of the check. Failure to deposit the necessary amount within 3 days from receipt of notice of dishonor from the bank and/or payee or holder shall be prima facie evidence evid ence of the deceit (Art. 315(2), RPC) NOTE: R.A. No. 10951 deleted paragraph 2(e) in Art. 315 of the Code. Defrauding the victim by not paying NOTE: for food, refreshment or accommodation is not anymore punishable as estafa under Art. 315, but it shall constitute as other deceit under Art. 318 (Campanilla, 2020, p. 641)   Q: X, an agent agent of an in surance company, was convicted for the crime of estafa for allegedly allegedly indu cing  Y to enter into a frau fraudulent dulent investment opport opportunity. unity. X made mi misrepresentat srepresentations ions to Y that that the latter’s money would be invested in t he insurance company and not t o an investment company. Was Was the conviction under Art. 315(2)(a) correct?  A: No. X did not employ any deceit in soliciting Y’s investments because she did not use a fictitious name or pretend to possess, power, agency, or certain qualifications, qua lifications, so that X’s acts do not fall under Art. 315 (2)(a). But she may be held liable for other deceits under Article 318, which is intended as a catch-all provision to cover all other kinds of deceit not n ot falling under Articles 315, 316, and 317 of t he Revised Penal Code. (Osorio v. People, G.R. No. 207711, 2018) Q: Petitioner X alleged that he had a telephone conversation with Accused Y wherein Y agreed to issue a BPI check as payment for the goods Y bought, but the check was dishonored due to insuffici ency of fu nds. On the contrary, Y claime claimed d that he issu ed the check to Z, his brother-in-la brother-in-law, w, that he did not have a telephone telephone conversation wi th X, a and nd that it w as Z who transacted with X proven by documents showing that Z received the goods from X. Is proof beyond reasonable doubt established esta blished to c onvict Y of the crim e of estafa? estafa?  A: No. In order to constitute estafa, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of the defraudation. This means that the offender must be able to obtain money or property from the offended party by reason of the issuance of the check, whether dated or postdated. The accused, to be guilty of estafa as charged, must have used the check in order to defraud the complainant. What the law punishes is the fraud or deceit, not the mere issuance of the worthless check.

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Moreover, the allegation of X that it was Y who transacted with him on the phone is not reliable for lack of authentication. (People v. Wagas, G.R. No. 157943, 2013)  2013)  Q: What What are the ways of comm itting estafa by fraudul ent means? means?  A: 1. By inducing another to sign any any document; document; 2. By resorting resorting to some fraudu fraudulent lent practice to to insure success success in a gambling game; or 3. By removing, concealing or destroying documents. (Art. 315(3), RPC)  RPC)  Q: Can there be estafa through negligence?

 A: No. There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in allowing another to take advantage of or benefit from the entrusted chattel cannot constitute estafa. (People v. Nepomuceno, CA, 46 OG 6135, as cited by Reyes, Book 2)  2)   Q: What What are other forms o f swindli ng?    A: 1. Any person who, pretending to be owner owner of any real property, property, sha shallll convey, sell, encumber or mortgage the same. 2. Any person, person, who, knowing knowing that real real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. 3. The owner of any personal property property who shall wrongfully wrongfully take it from its lawful possessor, to the prejudice of the latter or any third thi rd person. 4. Any person person who, to the prejudice prejudice of another, shall exe execute cute any fictitious contract contract.. 5. Any person who shall accept any compensation given him under under the belief that that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. 6. Any person who, who, while being a surety surety in a bond given in a criminal or civil action, wit without hout express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such s uch obligation. (Art. 316, RPC)  RPC)  Q: X draws draws a check upon request of Y, the payee, payee, who told X that he would merely sh ow the check to his creditor to gain more time to pay his account. The check bounced upo n presentation by the creditor. Under the circumstances, who can be prosecuted for estafa based on the dishonored check? (2011 (2011 BAR)  A: Y can be prosecuted for estafa as the one who negotiated the check contrary to the agreement which resulted to the prejudice of the offended party. The purpose of the issuance issu ance of the check was only to show the check to the creditors and not to be b e used as payment. (Art. 315 (1)(b), RPC)  RPC)   Q: Is Is the princi pal liable for esta estafa fa for appropr iation of the proceeds of the sale through an agent agent without paying the agent’s commission? How is this case distinguished from failure of a lessee to return leased leased chattel at the t ermination of the lease?  A: No, because there is no juridical transfer of possession possessio n from the agent to the principal who is entitled e ntitled to receive the full proceeds with the duty to pay the agent for services rendered. The obligation to pay does not arise from any duty to deliver or return the money to its supposed owner, but rather from the duty of a principal to give just compensation to its agent for the services rendered by the latter. On the other hand, even in the absence of a fiduciary relationship, the lessee is obliged to return the chattel under lease to the

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  lessor who originally had juridical possession which was transferred to the lessee by virtue of the lease. Breach of the duty to return constitutes estafa. (Murao, estafa. (Murao, et. al. vs. People, G.R. No. 141485, 2005)  2005)   Q: What What can the accus ed raise as a defense when he is charg ed with estafa?  A:  Estafa will not lie when the parties waive the negotiable character of a check, and instead treat the same as proof of an obligation. For instance, when there is an agreement between the parties at the time of the issuance and postdating of the checks that the obligee shall not encash or present the same to the bank, the obligor cannot be prosecuted for estafa because the element of deceit is lacking. When the payee was informed that the checks are not covered by adequate funds, bad faith or estafa shall not arise. (People v. Villanueva, G.R. No. 163662, 2015).  2015).  

Q: X was was neither licensed nor authorized to recruit wor kers for employment abroad. X then offered an employment oppor tunity abroad to Y. X asked asked Y to provi de documents and p ay placeme placement nt fees to pro cess the vis a. Howeve However, r, Y neve neverr received the vis a, and and w hen he went to look f or X, could no longer find the latter. Is X guilty of estafa? estafa?  A: Yes. Estafa by means of deceit is committed when these elements concur: (a) the accused used fictitious name or false pretense that he possesses power, influence, qualifications, property, credit, agency, business or imaginary transactions, or other similar deceits; (b) he used such deceitful means prior to or simultaneous with the commission of the fraud; (c) the offended party relied on such deceitful means to part with his money or property; and (d) the offended party suffered damage. In this case, X defrauded Y by representing that he can provide them with jobs abroad even though he had n no o license to recruit workers. He even collected irrelevant documents and placement fees. Furthermore, Y could no longer locate X to recover the amounts paid. Thus, X is i s guilty of estafa. (People v. Racho y Somera, G.R. No. 227505, 2017)  2017)   Q: X received several several pieces of jewelry for sale on consi gnment from Y un der the obligation that X will r emit the proc eeds of the sale or if not sol d, to return them to Y after after seven (7) days from receipt of the same. However, However, X willfully and unlawfully misappropr iated the benefits benefits to her own personal use. When When X failed to return the proceeds and t he jewelry, Y de demanded manded the same. X fa failed iled to do so and further argued that her liability was only civil and not criminal. RTC found X guilty beyond reasonable doubt of the crime of estafa defined and penalized under Article 315 (1)(b) of RPC. Should X be convicted of estafa? estafa?  A: Yes, X is guilty of estafa. The facts clearly show the existence of all the elements of the crime charged, considering that: (a) X received various pieces of jewelry from Y on a sale-on-consignment basis, as evidenced by the consignment document; (b) X was under the obligation to either remit the proceeds of tthe he sale or return the jewelry after the period of seven (7) days from receipt of the same; (c) X failed tto o perform her obligation, prompting Y to demand compliance therewith; and (d) X failed to heed such demand, d emand, thereby causing prejudice to Y. Y . (Rivac v. People, G.R. No. 224673, 2018)  2018)  Q: What What are the elements of es tafa?  A:  The elements of estafa under Article 315 (1) (b) of the RPC are as follows: 1. the offender's offender's receipt of money, goods, or other personal property in trust or on co commission, mmission, or for administration, or under any other obligation involving the duty to deliver or to return the same; 2. misappropriation or or conversion by the offender of the money or property property received, or denial of receipt of the money or property; 3. the misappropriation, misappropriation, conversion or denial is to the prejudice o off another; another; and 4. demand by the off offended ended party party that the offender. (Rivac v. People, G.R. No. 224673, 2018)  2018) 

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: X and and Y entered into an agreement whereby X sh all deliver pi eces of jewelry to Y for the latter to sell on comm ission b asis. After After one mont h, Y is ob liged to either: (a) (a) remit the proceeds of the sold  jew elr y; or (b) r etu eturn rn th e un so sold ld jew elr y t o the th e fo r mer . On di ff erent eren t d ates ates,, X d eli eliver ver ed var io us set s of jewelry to Y. Upon Upon the delivery of th e last batch of jewelry, Y issued a check as full s ecurity for the first two deliverie deliveries s and as partial security f or the last. When Y failed to remit the proceeds or to return t he unsold jewelry on due date, X presented When presented the check to the bank for encashment, but was dishon ored due to insuffi cient funds. Upon assurance of Y, X re- deposited deposited t he check, but again, the same w as dishonored because the drawee account

had been closed. X then then decided to c onfront Y, who then uttered Akala mo, babaya babayaran ran pa kita? Thus, X was constrained to file three (3) separate Information charging Y of the crime of estafa defined and penalized u nder Ar t. 315(1) 315(1)(b) (b) of t he RPC. RPC. Is Y guilty o f three counts of estafa?  A:  Yes. The essence of this kind of estafa is the appropriation a ppropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made. The words "convert" and "misappropriate" connote the act of using or disposing of another's property as if it were one's own, or of devoting it to a purpose or use different from that agreed upon. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. Hence, Y is guilty of estafa defined and penalized under Art. 315(1)(b). (Paz 315(1)(b).  (Paz Cheng y Chu v. People; G.R. No. 174113, 2016)  2016)   Q: X contracted the services of Y, a broker, for the sale of a share of st ock. Y late laterr intr oduced Z and they entered int o a D Deed eed of Absol ute Sa Sale. le. However, However, such s ale was later later annul led by the co urt. Thus, X returned returned to Z the sum o f money whi ch the latter paid for th e share share,, plus interest, and applied with the BIR for the refund of the taxes paid for the annulled sale. Meanwhile, X requested Y for an accounting of the sum she received received o n behalf of X. IIn n response, Y faxe faxed d d ocuments. Exa Examinin minin g the documents, X noticed a d iscrepancy in the faxed Capital Capital Ga Gains ins Tax Return: Return: while the typewritten portion of the Return indicated P1,480,000.00 as the capital gains tax paid, the machine validation impr int r eflected onl y P80,00 P80,000.0 0.00 0 as the amount p aid. To clarify the discrepancy, X secured a certified true copy of the Capital Gains Tax Return from the BIR that reflected onl y P80 P80,00 ,000.00 0.00 as the capital g ains tax p aid for t he sale of th e share. As a resul t, X demanded Y to properly account for the P2,800,000.00 allegedly given to her for the payment of taxes and broker's fees, but to no avail. This led to the filing of an Information fo r the crim e of estafa under Article 315 315,, para paragraph graph (1) (b) (b) of the Revised Penal Code (RPC) (RPC) against Y b efore th e RT RTC. C. T The he RTC and CA ru led th at the pr osecu tion failed faile d to establish that th e elements elements of estafa are are present. T The he question is whether Y can still be held liable for civil li ability ex de delicto? licto?  A:   No, Y cannot be held liable for civil liability ex delicto. When the element of misappropriation or conversion is absent, there can be no estafa and concomitantly, the civil liability ex delicto does not exist. In estafa under Art. 315 (1)(b), the fraud which the law considers as criminal is the act of misappropriation or conversion. When the element of misappropriation or conversion is missing, there can be no estafa. In such case, applying the foregoing discussions on civil liability ex delicto, there can be no civil liability as there is no act or omission from which any civil liability may be sourced. However, when an accused is acquitted because a reasonable doubt exists as to the existence of misappropriation or conversion, then civil liability may still be awarded. This means that, while there is evidence to prove fraud, such evidence

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  does not suffice to convince the court to the point of moral certainty that the act of fraud a amounts mounts to estafa.  As the act was nevertheless proven, albeit without sufficient proof justifying the imposition of any criminal penalty, civil liability exists. (Estate of Honorio Poblador, Jr., Represented By Rafael A. Poblador V. Rosario L. Manzano; G.R. No. 192391, 2017)  2017)  Q: Private complainants allege that Re Respondent spondent X, and and o ther members of his com pany, convinced them to invest large sums o f money into his com pany. The RT RTC C found that X fraudulently induced complainants to invest their money, despite knowing that he is prohibited from soliciting investments from the general public. Furthermore, it was discovered that X issued checks

representing th e investment of the complainants plus interest, only for the ch ecks to be dishon ored representing upon presentment for being drawn against closed accounts. Is X guilty of the crime of sy ndicated estafa?  A: Yes. X, along with other members of his company, repeatedly induced the public to invest inv est in his company on the undertaking that they would yield a huge percentage of returns. However, the accused knew from the start that the company had no clear trade by which it can pay the assured profits to its investors. Though not all proposals to invest in certain business busi ness ventures constitute fraud; actionable fraud arose when X had knowledge that the venture proposed would not reasonably yield the promised results but, despite such knowledge, deliberately continued with the misrepresentation. It became syndicated estafa because X was accused alongside 5 or more people. (People v. Aquino, G.R. No. 234818, 2018)  2018)   Q: A was the Loans Bookkeeper of the Bank and sh e was authorized authorized to collect and/or accept loan payments of the Bank’s clients and issue receipts rec eipts therefor, and remit payments to her supervisor. The Bank Bank disc overed that fraud and certain irr egularities egularities attended the same since there was non remittance of some loan payments. T The he Bank demanded an explanation and to r eturn the unr emitted money involved. Is Is A guilty o f estafa through m isappropriation?  A: No. The elements of estafa through misappropriation (Art 315 par. 1) are: 1) are: a) the offender's receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; (b) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property; (c) the misappropriation, conversion or denial is to the prejudice of another; and (d) demand by the offended party that the offender return the money or property received. recei ved. Under the first element, there must also be juridical possession, which means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. In this case, A was merely a collector of loan payments payments from the Bank’s clients. The money merely passes into her hands and she takes custody thereof only for the duration of the banking day. The sum of money received by A, is considered to be only in her material possession, not juridical possession. Hence, conversion of personal property in the case of an employee having mere material possession of the said property constitutes theft, whereas whereas in the case of an agen agentt to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes Estafa. Lacking the first element of the crime, A cannot be convicted of the crime cri me Estafa. (Benabaye v. People, G.R. No. 203466, 2015.) 201 5.)  

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  Q: What What are the special aggrava aggravating ting circumstances in Arson?  A: (IBSS) 1. If committed with I ntent to gain; 2. If committed for the B enefit of another; 3. If the offender is motivated by Spite or hatred towards the owner or occupant of the property burned; 4. If committed by a Syndicate (planned or carried out by a group of 3 or more persons). (Sec. persons). (Sec. 4, PD 1613)   1613) Q: What What are the guidelines when death death occur s on the occasion of arson?

 A:  Look at the offender s main intent.  intent.  Intent was to burn the building ●  But death results by reason or on occasion occasion of arson ●  Homicide is absorbed. Intent was to kill a person

Fire is used to kill the person (becomes a qualifying circ.) Fire is used to cover up the killing

 ARSON

MURDER  ARSON AND MURDER

(People v. Malngan, GR No. 170470, 2006) Q: What What are the special case cases s of malicious misc hief?  A: (PPIP) 1. 2. 3. 4.

Causing Damage to obstruct performance of Public ublic  functions; Using any Poisonous or corrosive substance; substance ;   Spreading any Infection or contagion among cattle; cattle;   Causing damage to to the property of the National Museum Museum or National Library Library or to any archive archive or registry, waterworks, road, promenade, or any other thing used in common by the Public ublic.. (Art. 328, RPC)

Q: What What are the exemptio exemptio ns from cr iminal liability in crimes against property?  A: No criminal but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following foll owing persons: 1. Spouses, ascendants and descendants or relatives by affinity in the same line; 2. The widowed spouse with respect respect to the property which belonged to the deceased sp spouse ouse before the same shall have passed to the possession of another; and 3.

Brothers and sisters and brothers-in-law and sisters-in-law living together. (Art. together. (Art. 332, RPC)

Q: What What is the effect effect on the relationshi relationshi p after the dea death th of one spouse?  A: Relationship by affinity between the surviving spouse and the kindred of the deceased spouse continues even after the death of the deceased spouse, regardless of whether the marriage produced children chil dren or not. (Carungcong v People and Sato GR. No. 181409, 2010)

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  H. CRIMES CRIMES AGAINST A GAINST L LIBERTY IBERTY Q: What are the elements elements of ki dnapping for ransom?    A:

a. b. c. d. e.

The accused are private persons, The person kidnapped is deprived of liberty, That person was taken or or detained detained against his/her will, That such k kidnapping idnapping was illegal or unlawful, and  The kidnapping was done done in consideration consideration of a ransom or a payment of release. (People v. Avancena, G.R. 200512, 2017) 

Q: Y worked as a housemaid and yaya of t he one-wee one-week k old son o f the spo uses A and B. When Y learned lea rned that her 70 year-old year-old mo ther was seriously ill, she asked B for a cash advance of P1 P1K K but B refused. One morning, Y gagged the mouth of B’s son with stockings; placed the child in a box; sealed sea led it with masking tape and placed the box in t he attic. Later Later in the afternoon, she demande demanded d P5K P5K as ransom f or the r ele elease ase of his son. B di d not pay the ransom. Subsequently, Y disappea disappeared. red.  Af ter a cou c oupl pl e o off d ays , B di sc overed ov ered th e b box ox in th e att ic wi th hi s ch chilil d alr eady dead dead.. Ac cord co rdin in g to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Y commit? Explain. (BAR 2005)  A:  Murder was committed. There is no kidnapping with murder but only murder where a 3-year old child was gagged and hidden in a box where the child died and an d accused asked for ransom. The demand did not convert the offense into kidnapping with murder because the accused was aware that the victim would suffocate to death within minutes after. The demand is only a part of the diabolic scheme to conceal the body and demand money before discovery of the body. (People v. Lora, G.R. No. L-49430, 1982) Q: A, a private individual, kidnapped B, a minor. On the second day, A relea released sed B before any c riminal information was filed. At the trial of his case, A raised raised the defense that he did not i ncur any cr iminal liability since he released the child before the lapse of the 3- day period and before criminal proceedings for kidnapping were instituted. Will A's d efe efense nse pros per? (2 (2004 004 BAR)  A: No, A's defense will not prosper. Voluntary release by the offender of the offended party in kidnapping is not absolutory. Restraint need not be permanent to be punished for kidnapping and serious illegal detention. (Art. 267, RPC, US v. Peralta, G.R. No. L-3273, L- 3273, 1907) Q: X, a private person, entered Y’s house by pushing her when she answered the door and shouting at her her to l et him in or else he would h urt her. This was in order to get away from a gang who was chasing after him with bolos. What is X’s criminal liability?  liability?    A:  He incurs no criminal liability. The provisions of Art. 280 on qualified trespass to dwelling shall not be applicable to any person who shall enter another’s dwelling for the purpose of preventing some serious harm to himself. In this case, he entered Y’s house in order to avoid some serious harm to himself and so  Art. 280, par. par. 3, RPC) he incurs no criminal liability. ( Art. Q: X was was forcibly taken from her house by a group of men. F For or several days, X was kept in a house where she was guarded by several men. The kidnappers demanded demanded ransom money from X’s family. On the day of the pay- off, the kidnappers were able to take the bag bag co ntaining the ransom but w ere subsequently arrested. Can Can they be convi cted with Ki dnapping for Ransom Ransom u nder Article 267 of the RPC?  A: Yes. The elements of the crime are as follows: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  must be illegal; and (d) in the commission of the offense any of the following circumstances is present: i) the kidnapping or detention lasts for more than three days; ii) it is committed by simulating public authority; iii) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or iv) the person kidnapped or detained is a minor, female, or a public officer. Notably, the duration of detention is immaterial if the victim is a minor, or if the purpose of the kidnapping is to extort ransom. There must be a purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent. In this case, the kidnappers illegally detained X against her will for the purpose of extorting ransom from her family. Thus, they are guilty of Kidnapping for ransom. (People ( People v. Lidasan, G.R. No. 227425, 2017) 

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  I. CRIMES AGAINST PUBLIC INTEREST Q: The baptism baptism of A was solemnized by B , an ecclesiastical minister, in the absence of C, one of the godparents. Upon Upon r equest of the mother of A, B caused the inclu sion of the name of C in the baptismal certificate of A as one of the god parents and allowed a proxy for C duri ng the baptismal ceremony. What What is the cri minal liability, if any, of the ecclesiastical minister?  A:  The ecclesiastical minister is not criminally liable because the insertion of the name of C in the baptismal certificate will not affect the civil status of A, which is a prerequisite before he can be charged with falsification under Art. 171. (Art. 171, RPC)

Q: What is the difference between falsification of public or official documents and that of private documents?  A:   The essential difference between falsification of private documents and that of public or official documents lies in the fact that while in the former, the prejudice to a third party is primarily taken in to account so that if such damage is not apparent, or there is i s at least no intention cause it, it, the falsification is not punishable; in the latter, that is, in the falsification of public or official documents, the principal thing punished is the violation of public faith and the perversion of truth which the document solemnly proclaims, and for this reason it is immaterial whether or not some prejudice has been caused to third persons. (People v. Pacana, G.R. No. L-22642, 1924) Q: X, a Chinese national, filed a petition under oath for naturalization, with RTC Manila. In his petition, he stated stated that he is married and living w ith Y in Ma Manila; nila; that he is of g ood mor al chara character; cter; and that he has conducted himself in an irreproachable manner during his s tay in the Philippines. However, Howeve r, at the time of the fili ng of the petition, Y was alre already ady living in Cebu, while X wa was s livi ng with Z in Manila, with whom he has a an n amorous relationshi relationshi p. After his direct testimony, X withdrew his p etition for naturaliza naturalization. tion. What crime or cr imes, if any, did X comm it? Explain. (2 (200 005 5 BAR)  A:  X committed perjury. His declaration under oath for naturalization that he is of good moral ch character aracter and residing with Y are false. This information is material to his petition for naturalization. He committed perjury for this willful and deliberate assertion of falsehood, which is contained in a verified petition made for a legal purpose. (Choa v. People, G.R. No. 142011, 2003) Q: X leased his apartm ent to Y for P10,000 P10,000 a mo nth. Y failed to pay t he rent for 3 mo nths . Z Z,, the son of X, prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. Y paid paid th e unpaid rentals to Z who kept the payment. What What crime/s did Z commit? Can Ca n Z invok e his relationship with X to avoid criminal liability? (2008 (2008 BAR)  A:  Z committed either the crime of falsification of a private document (if damage or at least intent to cause damage could be proved) or the crime of swindling only. It could not be both falsification and swindling or a complex crime of estafa through falsification since the document falsified was a private document. The two crimes cannot go together. If Z would be made criminally liable for falsification of a private pri vate document, he cannot invoke his relationship with X, his father, to avoid criminal liability because Art. 332 of the RPC provides exemption from criminal liability in crimes against property only, specifically for theft, swindling or malicious malicio us mischief. If he would be criminally liable for swindling, the exemption in Art. 332 will obtain. (Art. 332; Art. 172, par. 2; Art. 315, par. 2[a], RPC)

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: X submitted a photoc opy of a De Deed ed of Sale to the PNP PNP Crime Laboratory Laboratory for exa examination mination o f the signatures found thereon. T The he Document Exa Examiner miner confirm ed that the subject deed was falsified. However, under the Document Report submitted, it was said that no definite conclusion can be rendered rendere d due to the fact the questioned sig natures are photocopies wherein minute details are not clearly manifested. Y is then charged with the crime of Falsification of Public Documents under  Ar ticl ti cl e 172(1) of t he RPC. Can Y be c on vi ct ed of o f t he c ri me?  A: No. In every criminal case, the accused is entitled to acquittal unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean absolute certainty; only moral certainty is required, or that degree of proof which produces conviction in an unprejudiced mind. The prosecution

must establish the fact of falsification or forgery by clear, positive, and convincing co nvincing evidence, as the same is never presumed. In this case, due execution a photocopy could not competently established without a copy ofthe thegenuineness original. Theand declaration of theofDocument Examiner is be unreliable and inconsistent. Thus, it cannot support a finding of guilt beyond bey ond reasonable doubt against Lamsen. ((Lamsen Lamsen v. People, G.R. No. 227069, 2017) Q: X, a VP of a company, instructed Y to w ithdraw money fr om her accou nt via ATM. As the ATMs were offline, Y got the amount through the petty cash custodian of the company instead. The company’s finance manager Z informed X of the situation and the petty cash re port and X immediately immediate ly rectified the situation. Z instruc ted the petty cash custo dian to reverse the re report port b ut informed the president of the company of the situation. Z then instructed the petty cash cus todian to retrieve the report, print it on a scratch paper, and make it look old. X was administratively charged for using o ffice funds f or personal use on the basis of su ch report. X sued Z and the petty cash custodi an for Falsification of Private Documents. The petty cash cus todian argued that she was just jus t following Z’s instructions. Is the petty cash custodian guilty of Falsification of Private Documents?  A: Yes. The elements of Falsification of Private Documents under Article 172 (2) of the RPC are: ((a a) that the offender committed any of the acts of falsification, except those in i n Article 171 (7) of the same Code; ((b b) that the falsification was committed in any private document; and ( c) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. On the other hand the elements of Falsification under Article 171 (4) of the RPC are as follows: (a ( a) the offender makes in a public document untruthful statements in a narration of facts; ( b) he has a legal obligation to disclose the truth of the facts narrated by him; and ( c) the facts narrated by him are absolutely false. In the instant case, the MeTC, RTC, and CA all correctly found Manansala guilty beyond reasonable doubt of the aforesaid crime, considering that: (a (a) as UMC's Petty Cash Custodian, she is legally obligated to disclose only truthful statements in the documents she prepares in connection with her work, such as the subject report; (b (b) she knew all along that Siy never made any cash advance nor utilized the proceeds thereof for her personal use; (c (c) despite such knowledge, she still proceeded in revising the subject report by inserting therein a statement that Siy made such a cash advance; and (d ( d) she caused great prejudice to Siy as the latter was terminated from her job on account of the falsified report that she prepared. (Manansala v. People, G.R. No. 215424, 2015)  2015)  

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 ATENEO ENEO CENTRAL CENTRAL  AT BAR OPERATIONS 2021  Q: X filed a case against Y and others, accusing them, as public officers, of the crimes of Falsification of Public Documents, False Certification, and Slander by Deed. X alleged that their statements state ments in 2 sepa separate rate blotter entries were false, and and made to d ishono r/discredit him. The Office of the Provincial Prosecutor (OPP) dismissed both the complaint and the MR, and the Office of th e R Regional egional State Prosecuto r (ORSP) (ORSP) did t he same. X later filed a petitio n for review befor e the CA, CA, who dismi ssed it holdin g the ORSP ORSP is not the final authority in the hierarchy of the National National Prosecution Service. Whether Whether or n ot there was pro bable cause for the cr imes of Slander Slander by deed and False Certification?

 A:  There is no probable cause for crimes of Slander by Deed and False Fal se Certification. As aptly found by the ORSP, there was no improper motive on the part of respondents respo ndents in making the blotter entries as they were made in good faith; in the performance of their official duties as barangay officials; and without any intentio intention n to malign, dishonor, or defame Cariaga. Moreover, the statements contained in the blotter entries were confirmed by disinterested parties who likewise witnessed the incidents recorded therein. On the other hand, Cariaga's insistence that the blotter entries were completely false essentially rests on mere selfserving assertions that deserve no weight in law. Thus, respondents cannot be said to have committed the crime of Slander by Deed. Furthermore, suffice it to say that the mere act of authenticating photocopies of the blotter entries cannot be equated to committing the crime of False Certification under the law. (Cariaga ( Cariaga v. Sapigao, G.R. No. 223844, 2017) 2017 ) 

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 AT  ATENEO ENEO CENTRAL CENTRAL BAR OPERATIONS 2021  J. R.A. 9262 (ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004) Q: What What is the battered battered woman sy ndrome?  A:   Battered woman syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. Victims-survivors Victims -survivors suffering from battered woman syndrome do not incur any cr iminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC (Secs. 3 &26) Q: What What are the stages of the cycle of violence?

 A: The stages of the cycle of violence are: 1) Tension buil building ding phase; 2) Acute Battering Incident; AND 3) Tranquil, loving phase (non-violent phase) (People phase) (People v. Genosa, G.R. No. 135981, 2004)  2004)   NOTE:  In the determination of the state of mind of the woman who was suffering from battered woman NOTE: In syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists and psychologists. (Sec. 26)  26)  Q: What What are the different types of v iolence that can be committed against women and chil dren?  A:  (PEPS) 1. Physical violence - Refers to acts that include bodily or physical harm 2. Sexual violence - Refers to an act which is sexual in nature, committed against a woman or her child 3. Psychological violence - Refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual, or psychological abuse of a member of the family

4.

to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to t o custody and/or visitation of common children. Economic abuse - Refers to acts that make or attempt to make a woman financi financially ally dependent (Sec. 3(a))   3(a))

Q: What What are the acts of viol ence against against w omen and their ch ildren?  A:  (CTA-ICO-SRA) 1. Causing physical harm to the woman or her child; 2. Threatening to cause physical harm to a woman or her child; 3.  Attempting  A ttempting to cause physical harm to a woman or her child; 4. Placing a woman or her child in fear of Imminent physical harm; 5. Attempting to Compel a woman or child from engaging in conduct they have a right to desist from, or restrict them from conduct they have a right to engage in; i n; 6. 7. 8. 9.

Inflicting or threatening threatening to inflict physical physical harm to Oneself to control their action or decisions Causing or Attempting to cause cause them to engage engage in Sexual activity, not rape, thru force, physical harm, or intimidation; Engaging in purposely Reckless conduct that causes them substantial emotional or psychological distress; Causing them mental or emotional A emotional Anguish, nguish, public ridicule, or humiliation. (Sec. humiliation.  (Sec. 5)  5)  

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Q: Against Against whom are the said said violent acts com mitted?  A:  Said violent acts are committed against 1.  A w om oman: an: a) who is his wife; b) who is former wife, or c) with whom whom the person has or had a sexual or dating relationship, or d) with whom he has has a common child 2. The woman’s child  child  a) whether legitimate or illegitimate, within or without the family abode. abode. (Sec. 3(a))  3(a)) 

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Q: The Whadifferent What t are theprotection different orders protection  A: are: orders granted under the law? 1. Barangay Protection Order  (BPO)  (BPO) - Issued by punong barangay, after ex parte determination parte determination of the basis of the application, which orders perpetrator to desist from committing acts under Section 5 (1) and (2) of this Act.  Act.   Effective for fifteen (15) days. 2.

Temporary Protection Order  (TPO)  (TPO) - Issued by the court on the date of filing of the application after ex parte determination that such order should be issued.  issued.   Effective for at least a period of thirty (30) days and may be extended by order of the court. The court shall schedule a hearing on the issuance i ssuance of a PPO prior to or on the date of the expiration of the TPO.

3.

Permanent Protection Order (PPO) - Issued by the court after notice and hearing. h earing.   Effective until revoked by a court upon application of the person in whose favor the order was issued (Sec. 14-16). 14-16).

Q: X and and Y have a common child together but t hey are not married. X cheated cheated on Y, so th ey broke up. X was charged and convicted of a violation of the VAWC law on economic abuse, Sec. 5(e) of R. R.A. A. 9 926 262, 2, since he was not compl ying w ith the order of the cour t to giv e support to his illegitimate son wi th Y. X says that since the information alleged that the acts complained of caused mental or emotional anguish anguish , public ridic ule, or hum iliation to Y and the son, the convic tion is impr oper since those are elements to be alleged in relation to Sec. 5(i) instead. Is the conviction correct?  A:   Yes, the conviction under Sec. 5(e) of the VAWC Law is proper. Economic abuse may include the deprivation of support of a common child of the man-accused and woman-victim, whether the common child is legitimate or not. The deprivation of financial support is considered the act of violence against women and children. The act of denying support to a child is a continuing offense. Sec. 5(i) classifies economic abuse as a form of psychological violence. R.A. 9262 punishes the act of causing mental or emotional anguish, public ridicule, or humiliation to the woman and her child including emotional and verbal abuse as well as the denial of financial support. The prosecution showed that X deprived Y and the child of support, no evidence was adduced to show the deprivation caused either of them any mental or emotional anguish. Conviction under Sec. 5(e) is proper since the element of psychological violence is already specifically penalized therein. therein . (Melgar v. People, G.R. No. 223477, Feb. 14. 2018)  2018) 

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Q: An information was filed charging X, husband, of committing psychological abuse under the VAWC. VAW C. This This inform ation was based on th e fact that X committed marital infidelity with a wom an in Singapore. X filed a Motion to Quash, alleging that he cannot be held liable for a criminal act committed outside the Philippines. Is the husband’s argument correct?  correct?    A:  No. Philippine Courts may exercise territorial jurisdiction over violations of VAWC if one of the essential elements occurred in the Philippines. In this case, while the psychological violence was employed in Singapore, the mental anguish – anguish –another another essential element – occurred  – occurred in the Philippines as this element is personal to the victim (who is situated in the Philippines). ( AAA  AAA v. BBB, 2018 2018))

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K. R.A. 7610 (SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION, AND DISCRIMINATION ACT) Q: Who a are re considered children covered under this law?  A:  A child refers to 1. Persons below 18 years of age or 2. Those over 18 but are unable to protect themselves because of physical or menta mentall disability or condition (Sec. 3[a])  3[a]) 

Q: What is child abuse?  A: of aphysical, child 1. Maltreatment Psychological, sexual, and emotional; 2. Act by deeds or words which degrades dignity; dignity; 3. Unreasonable deprivation of basic needs; and 4. Failure to give immediate medical treatment. Q: What What is the punishable act of child p rostitu tion and other sexual abuse?  A:  When children, whether male or female, who for money, profit, other consideration or due to coercion by an adult, is made to indulge in sexual intercourse or lascivious conduct It is punishable when: (PSA) 1. Any adult adult who engages in, promotes, facilitates, or induces child Prostitution by: a) Acting as procurer; b) Inducing a client; c) Taking advantage or influence or relation to procure a child as prostitute; d) Threatening or using violence to engage a child as a prostitute; e) Giving pecuniary pecuniary benefit or goods to a child with intent to enga engage ge in prostitution; prostitution; 2. Any adult who commits Sexual intercourse or lascivious conduct with a child exploited; and 3. Any person who derives profit or A or  Advantage, dvantage, such as the manager or owner of establishment. (Sec. 5) 5)   Q: What What are consid ere ered d as oth er acts of abuse?  A: When the person: (DCDMB) 1. Commit any any acts of child abuse, cruelty, or exploitation, or be responsible for conditions prejudicial to the child’s Development; 2. Keep in his Company a minor twelve (12) years or under, or who is ten (10) years his junior, unless related within the 4th degree; 3. Induce, Deliver, or offer a minor to anyone prohibited by this Act; 4. Managers, owners of establishments or any person who allows a person to take along with him any minor herein described to places of accommodations, residence, etc.; and 5. Use, coerce, coerce, force, o orr intimidate a child to B eg for a living, act as middleman in drug trafficking, or conduct any illegal activities. (Sec. (Sec. 10) 10)

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Q: What are circumstances which gravely threaten or endanger the survival and normal development deve lopment of children?  A: This include, but are not limited to the following: 1. Being in a community where there is arm armed ed conflict; 2. Working conditions hazardous to life; 3. Living in the streets streets or fending for themselves; 4. Living under conditions of extreme poverty; 5. Being a victim of man-made or or natural disaster or calamity; and 6. Circumstances analogous.

Q: Compare Acts of Lasciviousness, Rape, and Sexual Assault under the RPC with Sexual Intercour Inte rcour se or Lasciviou s Conduct under RA 76 7610 10  A:

BELOW 12 YEARS OLD

Sexual intercourse with a victim who is under 12 years old or is demented is SEXUAL INTERCOURSE

SEXUAL SEXUAL ASSAULT

12 YEARS OLD BELOW 18 YEARS OLD OR 18 YEARS  AND AB OVE WITH SPECIAL CIRCUMSTANCES Sexual abuse under Section 5(b) of R.A. No. 7610

statutory rape. (Rape under  Art. 266-A 266-A in relation to  Article 266-B (penalties) of the RPC, as amended by R.A. 8353. Sexual assault (Art, 266-A (2) RPC) in relations to Sec. 5(b) 5 (b) of RA 7610

18 YEARS OLD  AND AB OVE

Rape under Art. 266-A in relation to  Article 266-B of the RPC, as amended by R.A. 8353

Lascivious Conduct under Sec. 5(b) of R.A. 7610

Q: What does “children exploited in prostitution or subjected to other sexual abuse” mean?  A:  A: A  A child is consider considered ed as one ““exploited exploited in prostitution or subjecte subjected d to other sexual abuse” when the ch child ild indulges in sexual intercourse or lascivious conduct “under the coercion or influence of any adult.” Sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the off ended ended party’s free will. (Caballo (Caballo v. People, 2013) 2013) Sec. 5 of RA 7610 punishes acts pertaining to or connected with child prostitution wherein the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct committed on a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit bu t also one in which a child, through coercion, intimidation, or influence, engaged engage d in sexual intercourse or lascivious cond uct. Hence, uct.  Hence, the law punishes not only child prostitution but also other forms of sexual abuse against children. (People ( People v. Ejercito, 2018) 2018 )

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Q: AAA is a 14 year old female third year high school student. BBB, her ROTC Commandant, told her that if sh e wanted to become an RO ROTC TC officer, officer, he would have to initiate her. BBB told her t o follow him to his house, where he confessed that he had a crush on her, pulled her onto his lap, told her to ki ss him on the cheek and lips, lifted he herr shi rt and underwear and suckled her breast for 2 minutes. She was frightened and couldn’t complain, until a year later when other students also complained that BBB molested them as well, Later, AAA filed a case against him for lascivious conduct in relation to RA 7610 Sec. 5(b), and BBB was convicted by the RTC. BBB raised in his appeal that

force and intimidation were not established by the prosecution. Was BBB properly convicted of lascivious co nduct under RA 76 7610? 10?    A: Yes, the conviction was proper. At the time, AAA was a minor. Thus, the provisions of RA 7610 come into play. The requisites for sexual abuse under RA 7610 Sec. 5(b) are (1) the accused committed the act of sexual intercourse or lascivious conduct; (2) the act is i s performed with a child exploited iin n prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. The IRR of RA 7610 provides that lascivious conduct includes the intentional touching, either eit her directly or through clothing, the breast of any person whether of the same or o r opposite sex, with an intent to humiliate, abuse, harass, degrade, arouse, or gratify the sexual desire of any a ny person. Force and intimidation were proven. BBB was AAA’s ROTC commander and teacher, thus BBB has moral ascendency and influence over her when he did the acts in question. Force and intimidation are subsumed by coercion and influence, and that lascivious conduct under the coercion or influence of an adult exists when there is some form of compulsion equivalent to intimidation which subdues the exercise of free will by the other party. Influence means the improper use of power or trust in any way that deprives a person of free will and substitutes another’s objective. Coercion is the improper use of power to compel another to  to   submit to the wishes of one who wields it. Clearly, in i n this case, BBB used his influence over AAA by telling her that only by acceding to his lewd requests would she gain rank in the ROTC. (Orsos ( Orsos v. People, 2017) 2017 ) Q: X, a 17 year old high school student, met Y, a 23 year old college student, and they became sweethearts. Y convinced X to have sexual intercourse several times by saying she wouldn’t get pregnant since he woul d use the w ithdrawal method, and that he would marry X. Later, Later, X become pregnant and they were forced to break up. Y was charged with violation of Sec 5(b) of RA 7610 and convicted by the court. On appeal, he argued that his promise to marry o r to use the withd rawal me method thod are not equivalent to the ele elements ments of persuasion or inducement that would lead to his conviction of the offense, since the sex was consensual. Were Were the e eleme lements nts of the crime of lascivious c onduct properly established?  A: Yes. The elements of Sec. 5(b) of RA 7610 are (1) the accused commits the act of sexual intercourse or lasciviousness conduct; (2) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. The first and third elements are clearly present, wince X and Y repeatedly had sexual relations while X was a minor. The second elements is also present, since a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion coe rcion or influence of any adult, which exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the party’s free will. The court considered the fact that X was a minor, Y was 6 years older. Y gave all sorts of assurances like marriage and the withdrawal method, and Y pressured X several times until she gave in to his requests (Caballo v. People, 2013) 2013)

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Q: 13-year-old A was raped by B. Because of this, B was convicted of rape under RA 7610 (AntiChild Abuse Law). However, However, B is saying that he sho uld b e convict ed of rape under t he RPC. RPC. Should Should he be convic ted of rape under th e RPC? RPC?  A: No. If the victim of sexual abuse is below 12 years of age, the offender should be prosecuted for statutory rape under Article 266-A(1)(d) of the RPC. On the other hand, if the victim is 12 years or older, the offender should be charged with other sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d] of the RPC. Here, since A was 13 years old, B can be prosecuted either under Sec. 5(b) of RA 7610 for sexual abuse,

or under Article 266- A  A of the RPC, except for rape under un der paragraph 1(d). Therefore, B’s conviction under RA 7610 is proper.(People proper.(People v. Matias y Dela Fuente, Fuente, 2012) Q: B, with intent to harm and hum iliate, did t hen and there, abuse, slap and whip A, a 14 yea yearr old minor with a T-shirt hitting his n eck and shoulder and causing him to fall down on the stairs of the barangay hall, to the damage and prejudice of the said victim in the amount to be proved during trial. Based on the physical examination conducted by Dr. Y, AA sustained a contusion. A is the victim and B is th e uncle of A. IIs s the prejudice to the development of the child necessary in violating Republic Ac t No. 76 7610? 10?  A:  No, prejudice to the development of the child is not a necessary element of the crime but constitutes another act different the 3 other acts which are enumerated in the same provision: child abuse, child cruelty and child exploration. The act of whipping a child three (3) times in the neck with a wet t-shirt constitutes child abuse. The victim, AA, was a child when the incident occurred. Q: Compare the elements of rape under the RPC and sexual intercourse with a child under Section 5(b) of the Child A buse Law w here the offended party is between 12 years old and bel ow 18.  A: In People vs. Tulagan (2019), (2019), the Supreme Court made the following comparison:  comparison:   RAPE

SEXUAL INTERCO INTERCOURSE URSE WITH A CHILD

Rape Under Article 266-A (1) (A,B,C) under the RPC

Section 5 (1) of R.A. 7610

Offender is a man Carnal knowledge of a woman

Indulges in sexual intercourse with a female child exploited in prostitution or other sexual abuse, who is 12 years old or below 18 or above 18 under special circumstances

Through force, threat or intimidation; when the offended party is deprived of reason or otherwise unconscious; and by means of fraudulent machination or grave abuse of authority

Coercion or influence of any adult, syndicate or group is employed against the child to become a prostitute

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L. R.A. 11313 (SAFE SPACES ACT) Q: Define Define Gender-Based Sexual Harassment Harassment i n the str eets or publ ic spac es.  A: Conduct targeted at a particular person that causes or likely to cause another mental, emotional or psychological distress, and fear of personal safety (Section 4).  4).   Q: What are acts of gender-based sexual harassment in the streets or public places? (Section 4)  A: 1. Making statements that have made an invasion on a person’s personal space and threatens one’s

2.

3.

personal safety a. Catcalling; b. Wolf-whistling; c. Unwanted invitations; d. Misogynistic, transphobic, homophobic and and sexist slurs/ slurs/ Use of words or actions that that ridicule on the basis of sex, gender, or identity; e. Persistent uninvited comments or gestures on a person’s appearance;  appearance;  f. Relentless requests for personal details; and g. Statement of sexual comments and suggestions; Acts with the effect of demeaning, harassing, threatening, threatening, or intimidating a person person a. Public masturbation or flashing of private parts; b. Groping; and c. Any advances, whether verbal or physical, that is unwanted and has threatened one’s sense of personal space and physical safety; and Stalking, touching, pinching pinching or brushing of the body Gender-based online sexual harassment.

Q: Define Gender-Based Online Sexual Harassment (Section (Section 12). 12).  A:  Includes acts that use information and communications technology  technology  whether publicly or through direct and private messages in terrorizing and intimidating victims victi ms through: 1. Physical, psychological, and emotional threats; 2. Unwanted sexual misogynistic, transphobic, homophobic and sexist remarks; remarks; 3. Comments online, invasion of victim’s privacy through cyberstalking and incessant messaging; messaging;   4. Uploading and sharing without the consent of the victim, any form form of media that contains photos, voice, or video with sexual content; 5.  Any unauthorized unauthorized recording and shar sharing ing of any of of th the e vi victim’s ctim’s p photos, hotos, videos, or any information information online;  online;   6. Impersonating identities identities of victims online or posting lies about victims to harm their reputation; and 7. Filing false false abuse reports to online platforms to silence victims. NOTE:: Imprescriptible. NOTE Q: Qualified gender-based streets, public places, and se sexual xual harassment (Se (Secti cti on 15 15))  A:  Penalty next higher in degree shall be imposed: 1. If the act takes place in a common carrier or PUV, where the perpetrator is the driver of the vehicle and the offended party is a passenger; 2. If the offended offended party is a minor, a s senior enior citizen, or a person with disability (PWD), (PWD), or a breastfeeding mother nursing her child; 3. If the offended party is diagnosed with a mental problem problem tending to impair consent; consent; 4. If the perpetrator perpetrator is a member member of the uniformed services and the act was perpetrated while the perpetrator was in uniform; and

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5.

If the act takes place in the premises of a government agency offering offering frontline services to the public and the perpetrator is a government employee.

Q: Describ Describ e Gender-Based Gender-Based Se Sexual xual Harassment in t he Workplace acco rdin g to Section 16.  A:  Acts which may be done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information i nformation and communication systems such as: 1. Acts or series of acts involving any any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature which has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;

2.

A conduct of sexual nature nature and other conduct-based on sex affecting the dignity of a person, person, which is

3.

unwelcome, unreasonable, and offensive to the recipient; and A conduct that is unwelcome unwelcome and pervasive and and creates an intimidating, hostile or humiliating humiliating environment for the recipient

Which may be committed: committed : 1. Between peers; 2. By subordinate to superior officer; 3. By student to teacher; and 4. By trainee to trainer. NOTE:: Prescribes in 5 years. NOTE Q: What What i s GenderGender-Based Based Sexual Sexual Hara Harassment ssment in Educational and Training Institut ions?  A:  Acts of gender-based harassment or sexual violences that creates a hostile environment.  environment.  (Section 21).  21).   NOTE:: Prescribes in 5 years. NOTE Q: What are public spaces?  A:  Streets and alleys, public parks, schools, buildings, malls, bars, restaurants, transportation terminals, public markets, spaces used as evacuation centers, government offices, public utility vehicles as well as private vehicles covered by app-based transport network services and other recreational spaces such as, but not limited to, cinema halls, theaters and spa (Section 3).  3).   Q: What are the duties of other privately owned businesses open to the public under the Safe Spaces Spa ces Act?  A: 1. Adopt a zero-tolerance policy against gender-based streets and public spaces sexual sexual harassment. 2.

3.

Provide assistance to victims of gender-based sexual harassment by a. Coordinating with local police authorities immediately af after ter gender-based sexual harassment is reported; b. Making CCTV footage a available vailable when ordered by the the court; c. Providing a safe gender-sensitive gender-sensitive environment to encourage victims victims to report gender-based sexual harassment at the first instance; and Designate at at least one (1) anti-sexual harassment harassment o officer fficer to rreceive eceive gender-based sexual harassment complaints.

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Q: What are the other penalties public utility vehicle operators may face if acts which constitute sexual harassment harassment are committed in public u tility vehicles?  A: The Land Transportation Authority may: 1. Cancel the license of perpetrators perpetrators found to to have comm committed itted acts constituting sexual harassment harassment in public utility vehicles; and 2. Suspend or revoke revoke the franchise franchise of transportation transportation operators who commit gender-based streets and public spaces sexual harassment acts. NOTE:: If the perpetrator is the driver it shall also constitute a breach of contract of carriage, for the purpose NOTE

of creating a presumption of negligence on the part of the owner or operator of the vehicle in the selection and supervision of employees and rendering the owner or operator solidarity liable for the offenses of the employee. Q: What are are the ot her penalties against minor s wh o com mit Gender-Based Gender-Based Sexua Sexuall Harassme Harassment nt i n Streets and Public Spaces may face?  A:  The DSWD shall take necessary measures under the Juvenile Justice Welfare Act.

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M. R.A. 10173 (DATA PRIVACY ACT OF 2012) Q: What What is personal information?  A:  It is any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. Q: What What is sensitive personal information?  A:  It refers to personal information:

1.  About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations; 2.  About an individual’s health, health, education, education, genetic or sexual life of a person, person, or to any pro proceeding ceeding for an any y offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such s uch proceedings; 3. Issued by government agencies peculiar to an individual which includes, but not limited tto, o, social security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns; and 4. Specifically established by an executive executive order or an act of Congress Congress to b be e kept classified. Q: What What is privileged information?  A:  Any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication. Q: What What is the scope of the Data Data Privacy Act?  A:  Applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing Does not apply to: 1. Information about any individual who was an officer or employee of the gover government; nment; 2. Performed a service contract contract for a government institut institution ion in relation tto o services perfo performed; rmed; relating to any discretionary benefit of a financial nature (granting of a license permit); 3. Personal information processed processed for journalistic, artistic, literary or research purpo purposes; ses; 4. Information in order to carry carry out the functions of public authority; 5. Information necessary for banks and other financial institutions under the jurisdiction of of the BSP; and 6. Personal information originally originally collected from residents of foreign foreign jurisdictions in accordance with the laws of those foreign jurisdictions. Q: What What are the cri mes und er the DPA DPA? ?  A: 1. 2. 3. 4. 5. 6. 7. 8.

Unauthorized processing of personal inform information ation and sensitive personal information; Accessing personal information and sensitive sensitive personal information due to negligence; Improper disposal of personal information and sensitive sensitive personal information; Processing of personal information and and sensitive personal information information for unauthorized purposes ; Unauthorized access or intentional breach; Concealment of security breaches breaches involving sensitive person personal al information; information; Malicious disclosure; and Unauthorized disclosure.

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Q: What What is the extent of liability u nder DPA? DPA?  A: 1. Juridical Person a. The penalty shall be imposed upon the responsible responsible officers who participated participated or were negligent in allowing the commission of the crime. 2. Alien a. In addition to penalties, be deported without further proceedings after serving the penalties prescribed. 3. Public Official

a.

Perpetual or or temporary temporary absolute disqualification disqualification from office, as the case may be. ————-- end of topic ———— ———— ————--

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