MANDATORY CONTINUING LEGAL EDUCATION COMPLIANCE PROGRAM

INTEGRATED BAR OF THE PHILIPPINES-LA UNION CHAPTER

Puerto de San Juan Resort Hotel, Ili Sur, San Juan, La Union
February 26-28 and March 01, 2018

FEBRUARY 26, 2018

A. LAND REGISTRATION DOCUMENTATION

IDENTIFYING LAND TITLE DOCUMENTS/DETECTION OF SPURIOUS TITLE/REGISTRATION

REQUIREMENTS

Title is different from a Certificate of Title

Dinah C. Castillo vs. Antonio M. Escutin, et al., G.R. No. 171056, March 13, 2009

 Title is generally defined as the lawful cause or ground of possessing that which is
ours. It is that which is the foundation to ownership of property, real or personal.
 Certificate of Title, on the other hand, is a mere evidence of ownership; it is not
the title to the land itself.

Obtaining an Original Title (for the first time)

Original Certificate of Title (OCT) - when a parcel of land is registered and given a title
for the first time.

Two ways of obtaining an original title:

1. Administrative Issuances of Original Title – original titles issued by different
administrative agencies of the government such as: i.e DENR, DAR, NCIP
2. Judicial Issuances of Original Title – original titles issued as a result of a judicial
application for original certification title.

Administrative Titling
DENR – Public Land Patents:
 Free Patents (Administrative Legalization of imperfect title) (5 years prohibitory
period)
 Homestead Patents (5 years)
 Sales and Miscellaneous Sales Application Patents (no prohibition)
 *Residential Free Patents (RA 10023) (no prohibition)

Residential Free Patents (RA 10023, July 27, 2009)

*** the prohibitory period shall be reckoned from the issuance of the title patent
by the issuing authority (DENR or PENRO or Cenro as the case may be and not from the
date of registration. (Sec. 118, CA 141) ***

Administrative Titling
DAR – Department of Agrarian Reform
 Original Certification of Land Ownership Award (OCT CLOA’s)
 Emancipation Patents (OCT EP’s)
 Ten (10) year prohibitory period (from date of issuance of CLOA)
- Comprehensive Agrarian Reform Program (R.A. 6657 – June 10, 1988)
- PD No. 27 (Agrarian Emancipation Decree of 1972 – October 21, 1972)

Administrative Titling
National Commission for Indigenous People (NCIP):
 CADT’s (Certification of Ancestral Domain Titles) – registered in the name of a
group or tribe belonging to ICC’s/IP’s.
 CALT’s (Certification of Ancestral Land Titles) – individuals, families and clans who
are members of the ICC’s/IP’s.

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 *** Indigenous People Rights Act – IPRA (R.A. 8371 – October 29, 1997) ***

B. THE REVISED RULES ON CONTINUOUS TRIAL

By: Judge Gerely C. Rico-Cruz

4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan

REVISED GUIDELINES FOR CONTINUOUS TRIAL OF CRIMINAL CASES

(A.M. No. 15-06-10-SC)(for Mandatory Continuing Legal Education)
U.P. Law Institute for the Administration of Justice 26 February 2018

Date of Effectivity and Applicability of the New Guidelines:

o Took effect on 01 September 2017.
o Shall apply to:
 Newly-filed criminal cases, including those governed by Special
Laws and Rules, in the First and Second Level Courts, the
Sandiganbayan and the Court of Tax Appeals as of effectivity
date; and
 Pending criminal cases with respect to the remainder of the
proceedings.

Objectives of the New Guidelines

1. To protect and advance the constitutional right of persons to a speedy
disposition of their criminal cases;
2. To reinforce and give teeth to the existing rules on criminal procedure and other
special rules prescribing periods for court action and those which promote
speedy disposition of criminal cases; and
3. To introduce innovations and best practices for the benefit of the parties.

Periods under the New Guidelines, Rules of Summary Procedure, and Rules of Criminal
Procedure:

Stage of New Guidelines Rules of Summary Rules of Criminal

proceedings Procedure Procedure
arraignment 10 days (for If there is probable 30 days from the
detainees) cause, court shall time the Court
set case for acquired
30 days (for non- arraignment jurisdiction over the
detainees) person of the
If accused is in accused, unless a
From the time the detention, shorter period is
Court has acquired arraignment shall provided by a
jurisdiction over the be set immediately special law or SC
person of the circular
accused
Pre-trial/preliminary Arraignment and No period specified After arraignment
conference pre-trial/preliminary and within 30 days
conference are from the time the
scheduled and court has acquired
conducted on the jurisdiction over the
same day for all person of the
criminal cases accused, unless a
whether covered shorter period is
by the regular rules provided
or rules of summary
procedure
Trial Summary No period specified 180 days
procedure – 90

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 days

Regular procedure
– 180 days
Decision Summary 30 days after 90 days from the
procedure – 30 termination of trial time case is
days from the time submitted for
case is submitted decision
for decision

Regular procedure
– 90 days from the
time case is
submitted for
decision

Periods for Special Cases (as provided by law):

1. Drug Cases
Trial: Not more than 60 days from the filing of the Information
Decision: 15 days from the time case is submitted for decision

2. Environmental Cases
Trial: 3 months from pre-trial conference plus 30 days for filing of memoranda
Decision: 60 days from the last day to file memoranda

3. Intellectual Property cases

Trial: 120 days after pre-trial conference for presentation of evidence of both
parties plus 30 days for filing of memoranda
Decision: 90 days from the time case is submitted for decision

C. JUDICIAL CONDUCT DURING ALTERNATIVE DISPUTE RESOLUTION

By: Judge Gerely C. Rico-Cruz
4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan

Modes of ADR under our present system

1. Katarungang Pambarangay
2. Court-Annexed Mediation
3. Judicial Dispute Resolution
4. Arbitration
5. Appellate Court Mediation
6. Voluntary arbitration/mediation under R.A 9285

Katarungang Pambarangay under the Local Government Code

Under Section 408 of R.A No. 7160

1. All disputes of parties residing in the same city or municipality

Exceptions:
1) Where one party is the government, or any subdivision or instrumentality thereof;
2) Where one party is a public officer or employee, and the disputes relates to the
performance of his official functions;
3) Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five Thousand pesos (P5,000.00);
4) Offenses where there is no private offended party;
5) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 6) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the
parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon;
7) Such other classes of disputes which the President may determine in the interest
of Justice or upon the recommendation of the Secretary of Justice.

Exceptions under Section 412(b) of R.A. No. 7160

Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically the following:
a) Criminal cases where accused is under police custody or detention;
b) Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of or on acting in his behalf;
c) Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of
the action;and
d) Action which may be barred by the Statute of Limitations.

D. RECENT SUPREME COURT ISSUANCES AFFECTING LAW PRACTICE

OCA CIRCULAR NO. 215-2017

Subject: PLEA BARGAINING IN DRUG CASES PURSUANT TO ESTIPONA V. JUDGE LOBRIGO,
G. R. NO. 226679, 15 AUGUST 2017

OCA CIRCULAR NO. 138-2017

Subject: FURNISHING THE PHILIPPINE DRUG ENFORCEMENT AGENCY WITH CERTFIIED TRUE
COPY/IES OF THE INVENTORY OF ALL NON-DRUG EVIDENCE SEIZED, FROFEITED,
CONFISCATED AND DEPOSITED OR IN CUSTODIA LEGIS IN DRUGS CASES

OCA CIRCULAR NO. 173-2017

Subject: PROPER USE OF SOCIAL MEDIA

OCA CIRCULAR NO. 209-2017

Subject: USE OF THE OFFICIAL NOTARIAL REGISTER (JUDICIAL FORM NO. 143, AS
AMENDED)

OCA CIRCULAR NO. 209-2017

Subject: GUIDELINES IN THE TAKING OF DEPOSITIONS BEFORE THE PHILIPPINE CONSULAR
OFFICERS ABROAD

OCA CIRCULAR NO. 213-2017

Subject: APPROVED RESOLUTION 02-2017 OF THE COMMITTEE ON FAMILY COURTS AND
JUVENILE CONCERNS (RE: PROPOSED GUIDELINES AND CLARIFICATION IN THE
INTERPRETATION AND APPLICATION OF PERTINENT PROVISIONS OF REPUBLIC ACT NO.
8552 [DOMESTIC ADOPTION ACT OF 1998]. REPUBLIC ACT NO. 8043 [THE INTER-COUNTRY
ADOPTION ACT OF 1995]. REPUBLIC ACT 9523 [ACT REQUIRING CERTIFICATION OF THE
DSWD TO DECLARE A “CHILD LEGALLY AVAILABLE FOR ADOPTION” AS PREREQUISITE FOR
ADOPTION PROCEEDINGS AND ADMINISTRATIVE MATTER NO. 02-6-02-SC [RULE ON
ADOPTION] AS TO THE REQUIRED DOCUMENTS IN ADOPTION)

OCA CIRCULAR NO. 228-2017

Subject: SUBMISSION OF QUARTERLY REPORTS FOR CRIMINAL CASES USING THE
CONTINUOUS TRIAL MONITORING SYSTEM (CTMS)

OCA CIRCULAR NO 228A-2017

Subject: SUBMISSION OF QUARTERLY REPORT FOR CRIMINAL CASES USING THE
CONTINUOUS TRIAL MONITORING SYSTEM (CTMS)

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 OCA CIRCULAR NO. 232-2017
Subject: ADMISSIBILITY OF PARTIES’ STIPULATIONS ON FORENSIC LABORATORY REPORTS IN
DRUGS CASES

OCA CIRCULAR NO. 244-2017

Subject: IMPLEMENTATION OF THE e-SUBPOENA SYSTEM

FEBRUARY 27, 2018

E. UPDATES IN ARTICLE 36 OF THE FAMILY CODE

By: Ma. Soledad Deriquito-Mawis
Dean, College of Law, Lyceum of the Philippines University
Chairman, Philippine Association of Law Schools

ARTICLE 36, FAMILY CODE

“A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with his obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its solemnization.”

CHING MING TSOI VS. CA,

G.R. NO. 119190 January 16, 1997
 If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to
stubborn refusal. Senseless and protracted refusal is equivalent to psychological
incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity.

What then is Psychological Incapacity?

“Psychological Incapacity” should refer to no less than a mental (not physical)
incapacity that causes a party to be truly incognitive of the basic marital covenants
that concomitantly must be assumed and discharged by the parties to the marriage.
(Santos vs. CA)

The MOLINA DOCTRINE

(RP VS. MOLINA, G.R. No. 108763 February 13, 1997)

Guidelines in the interpretation and application of Art. 36 of the Family Code are
hereby handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity.
(2) The root cause of the psychological incapacity must be
(a) Medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at “the time of celebration” of the
marriage. The evidence must show that the illness was existing when the parties
exchanged their “I do’s.” The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against everyone of the same sex.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. There is a natal or supervening

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 disabling factor in the person, an adverse integral element in the personality
structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71
of the Family Code as regards the husband and wife as well as Article 220,221
and 225 of the same Code in regard to parents and their children.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts.

What is Not Psychological Incapacity?

Mere showing of “irreconcilable differences” and “conflicting personalities” do not

constitute psychological incapacity, and further issued guidelines in the interpretation
and application of Art. 36 of the Family Code.
(Republic v. Molina, G.R. No. 108763, Feb. 13, 1997)

Homosexuality is not akin to failure to comply with the essential marital obligations.
(Almelor v. RTC-Las Piñas, G. R. No. 179620, Aug. 26, 2008)

Sexual infidelity and abandonment of the conjugal dwelling, even if true, do not
necessarily constitute psychological incapacity; these are simply grounds for legal
separation. (Republic v Encelan, G. R. No. 170022, Jan 9, 2003)

Mere Alcoholism, abusiveness, H being a fugitive from justice not Psy. Incap. Petitioner
failed to present an expert witness. Hence failed to prove root cause.
(RP vs. Dagdag, 351 SCRA 425)

Lack of attention to children, immaturity, lack of intention to procreate, incompability

are not grounds under Art. 36. There should be a natal or supervening disabling factor in
the person, an adverse integral element in the personality structure that effectively
incapacitates him. (Choa vs. Choa, G. R. No. 142011, March 14, 2003)

Mere abandonment and insensitivity not psychological incapacity Abandonment

ground for legal separation. (RP vs. Quintero-Hamano, G.R. No. 149498, May 20, 20014)

Emotional immaturity and irresponsibility per se not psychological incapacity. (Pesca vs.
Pesca, G. R. No 136921, April 17, 2001)

Unsatisfactory marriage is not a null and void marriage. (Siayngco vs. G. R. No. 158896,
October 27, 2004)

Frequent squabbles and refusal to sleep with spouse not psychological incapacity.
(Navarro vs Navarro, G.R. No. 162049, April 13, 2007)

Concealment of homosexuality is not psychological incapacity. It is a ground for

annulment of marriage on the ground of fraud. Homosexual tendencies is not also
psychological incapacity. (Almelor vs RTC-Las Pinas, G.R. No. 179620, Aug. 26, 2008)

Irresponsibility, infidelity and homosexual tendencies not psychological incapacity.

(Laurena vs Laurena G. R. No. 159220, September 22, 2008)

Being a Mama’s boy not a ground for nullity. (Republic vs. Cabantug-Baguio, G.R. No.
179620, Aug. 26, 2008)

What Constitutes Psychological Incapacity?

a) Gravity – It must be grave and serious such that the party would be incapable of
carrying out the ordinary duties required in a marriage;

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 b) Juridical Antecedence – It must be rooted in the history of the party antedating
the marriage, although the overt manifestations may emerge only after the
marriage; and
c) Incurability – It must be incurable, or even if it were otherwise, the cure would be
beyond the means of the party involved.
RP vs. Cabantug-Baguio, vs. G. R. No. 171042, June 30, 2008

F. PROSECUTING ORIGINAL AND SUBSEQUENT LAND REGISTRATION CASES

PRACTITIONER’S APPROACH ON ORIGINAL and SUBSEQUENT REGISTRATION

 Section 2 (PD 1529 Property Registration Decree)

Nature of registration proceedings; jurisdiction of courts. Judicial proceedings for
the registration of lands throughout the Philippines shall be in rem and shall be
based on the generally accepted principles underlying the Torrens system.
 Regular court has exclusive original jurisdiction over original and subsequent
registration proceedings, such as amendment/correction of title/petition for
surrender of title/petition for re-issuance of lost owner’s duplicate of title.
 DARAB has no jurisdiction to act on these kinds of petition. (LRA Consulta No.
2266) (Although DARAB Rules state otherwise)
 Shariah Court has no jurisdiction over these kinds of petition.

What are the proceedings in land registration as provided for in Property Registration
Decree PD 1529?

1. Ordinary and Cadastral land registration.

2. Proceedings subsequent to original registration.

1. Petition for Reconstitution (Sec. 110, PD 1529/RA 6732)

2. Petition for Reissuance of new owner’s copy in lieu of lost one. (Sec. 109,
PD 1529)
3. Petition for amendment/correction of title (Sec. 108, PD 1529)
4. Petition for surrender of owner’s duplicate copy of title. (sec. 107, PD 1529)

TITLE is different from a CERTIFICATE OF TITLE

Dinah C. Castilo vs. Antonio M. Escutin, et al., G.R. No. 171056, March 13, 2009

 Title is generally defined as the lawful cause or ground of possessing that which is
ours. It is that which is the foundation of ownership of property, real or personal.
 Certificate of Title, on the other hand, is a mere evidence of ownership; is is not
the title to the land itself.

Two ways to obtain original certificate of title

Judicial application:

Ordinary land proceeding. (Public Land Act – Act 141 [Sec. 48 (b) {1}] and (PD
No.1525 [Sec. 14(1 & 20] – Judicial confirmation of imperfect title

Cadastral Registration Proceedings under P.D No. 1529 (Property Registration

Decree) in relation to Act No. 2259 – Cadastral Act (Feb. 11, 1913)

Administrative Titling - DENR, DAR, NCIP

DAR – Department of Agrarian Reform

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
  Original Certificate of Land

Ownership Award (OCT CLOA’s)

 Emancipation Patents (OCT EP’s)

 Ten (10) year prohibitory period (from date of issuance of CLOA)

 Comprehensive Agrarian Reform Program (R.A. 6657 – June 10, 1988)

 PD No. 27 (Agrarian Emancipation Decree of 1972 – October 21, 1972)

DENR- Public Land Patents:

 Free Patents (administrative Legalization of imperfect title) (5 years prohibitory

period)
 Homestead Patents (5 years)
 Sales and Miscellaneous Sales Application Patents (no prohibition)
 *Residential Free Patents (RA 10023) (no prohibition);
 Special Patents issued as a result of issuance of Presidential Proclamation.

****the prohibitory period is reckoned from the issuance of the patent by the
issuing authority (DENR Sec or PENRO or Centro as the case may be and not
from the date of registration. (Sec 118, Public Land Act {CA 141})

Can you have a title over “small” island?

DENR Administrative Order No. 2003 dtd March 17, 2003, revoking the earlier
DENR Administrative Order No. 2000 – 83 dtd November 13, 2000

All applications for land titling in classified A & D lands and the issuance of
lease/permit over public lands in small islands, whether new or renewed, or
any extension of the same, shall now be processed in accordance with the
existing administrative/operational procedures.

Small Islands – refer to islands/islets with an area of not more than 50

hectares.

Administrative Titling

National Commission for Indigenous People (NCIP):

 CADT’s (Certificate of Ancestral Domain Titles) registered in the name of a

group or tribe belonging to ICC’s/IP’s-
 CALT’s (Certificate of Ancestral Land Titles) – individuals, families and clans
who are member of the ICC’s/IP’s

*Indigenous Peoples Rights Act – IPRA (R.A. 8371 – October 29, 1997)

JUDICIAL ISSUANCE OF ORIGINAL TITLE

Issuance of Title by way of Judicial Decree issued by the Court in a Judicial application
for original registration of title

 Ordinary Judicial Application for ORIGINAL registration of title under (Public Land
Act – Act 141 [Section 48 (b)]) and (Property Registration Decree – Property
registration Decree [Section 14 (1 & 2)] – Judicial confirmation of imperfect title
 Cadastral Registration Proceeding under P.D. No. 1529 (Property Registration
Decree) in relation to Act no. 2259 – Cadastral Act (February 11, 1913)

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 CADT and CALT, mere recognition of a native title, thus strictly speaking, not part of
Torrens system

ISAGANI CRUZ vs. SEC. of DENR (SC G.R. No. 135385, December 6, 2000)

 Land titles do not exist in the indigenous peoples’ economic and social system.
Thus, CADT’s and CALT’s are mere recognition of native title. Native title refers to
ICC/IPs’ pre-conquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. The rights of ICCs/IPs to their
ancestral domains (which also include ancestral lands) by virtue of native title
shall be recognized and respected. Formal recognition, when solicited by
ICCs/IPs concerned, shall be embodied in a Certification of Ancestral Domain
Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the
territories identified and delineated
 However, for the purpose of bringing the Ancestral Land into the legal regime of
Torren system, the IP is given the option to apply for a torrens title un the Public
Land Act (CA 141) and Land Registration Act (Act 496. 12, IPRA law).

Judicial Issuance of Original Title

Issuances of Title by way of Judicial Decree issued by the Court in a Judicial

application for original registration of title

 Ordinary Judicial Application for Original registration of Title under (Public Land
Act – Act 141 [Sec. 48 (b)] and (Property Registration Decree – Property
Registration Decree [Sec. 14 (1 & 2)] – Judicial confirmation of imperfect title
 Cadastral Registration Proceedings under P.D. No. 1529 (Property Registration
Decree) in relation to Act No. 2259 – Cadastral Act (Feb. 11, 1913)

Venue of original land registration

Section 34. Delegated jurisdiction in cadastral and land registration cases. –

Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may
be assigned by the Supreme Court to hear and determine cadastral or land registration
cases covering lots where there is no controversy or opposition, or contested lots where
the value of which does not exceed One hundred thousand pesos (P100,000), such
value to be ascertained by the affidavit of the claimant or by the agreement of the
respective claimants if there are more than one, or from the corresponding tax
declaration of the real property. Their decision in these cases shall be appealable in the
same manner as decision of the Regional Trial Courts. (as amended by Sec. 4 of R.A No.
7691) (Batas Pambansa Blg. 129)

Substantial Requirement in judicial land registration

Republic vs. Malabanan (GR no. 179987, April 29, 2009)

Section 14. (PD. 1529) {Property Registration Decree}

Who may apply. – the following persons may file in the proper Court of first Instance of
application for registration of the title of the land, whether personally or through their
duly authorized representatives:

(1) Those who by themselves or through their predecessors-in-interest have been in

open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier.
(2) Those who have acquired ownership of private land by prescription under the
provision of existing laws.

Civil Code provisions applicable to Section 14 (2) of PD1529

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 Article 1113: All things which are within the commerce of men are susceptible of
prescription, unless otherwise provided. Property of the State or any of its subdivisions
not patrimonial in character shall be the object of prescription.
Article 419: Property is either of public dominion or private ownership.
Article 420: The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the States, banks, shores, roadsteads, and others of
similar character;
(2) Those which belongs to States, without being for public use, and are intended for
some public service of for the development of the national wealth.
Article 421: All other property of the States, which is not of the character stated in
the preceding article, is PATRIMONIAL PROPERTY.
Article 422: Property of Public Domain, when no longer intended for public use or for
public service, shall form part of the patrimonial property of the State.

FEBRUARY 27, 2018

G. CHALLENGES AND ISSUES IN CRAFTING ONLINE DATA POLICIES

International Norms: Privacy and Freedom of Expression as Human Rights

 Universal Declaration of Human Rights (UDHR) declares that “[n]o one shall be
subjected to arbitrary interference with his privacy, family, home or
correspondence. “[art. 12]
 International Covenant on Civil and Political Rights [ICCPR] stated that a person
“shall [not] subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence.” [Art. 17]
 ICCPR recognized the human right to freedom of expression and affirms that
“this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.” [Art. 19]
Excepted Information (Allowed to be processed)
1. The data subject has given his or her consent, specific to the purpose prior to the
processing of the data.
2. In the case of privileged communication, all parties to the exchange have
given their consent prior to processing.
3. The processing of the privileged communication is provided for by existing laws
and regulations, which
o (i) guarantee the protection of the sensitive personal information and the
privileged information; and
o (ii) the consent of the data subjects are not required by law or regulation
permitting the processing of the sensitive personal information or the
privileged information
4. The processing is necessary to protect the life and health of the data subject or
another person, and the data subject is not legally or physically able to express
his or her consent prior the processing.
5. The processing is necessary;
o (i) to achieve the lawful and noncommercial objectives of public
organizations and their associations,
o (ii) such processing is only confined and related to the bona fide members
of these organizations or their associations, and
o (iii) the sensitive personal information are not transferred to third parties,
finally,
o (iv) consent of the data subject was obtained prior to processing.
6. The processing is necessary for purposes of medical treatment, is carried out by a
medical practitioner or a medical treatment institution, and an adequate level
of protection of personal information is ensured.

Telephone: (072) 242-5550 local 208, 278 Fax No: (072) 607-4707
 7. The processing concerns such personal information as is necessary (i) for the
protection of lawful rights and interests of natural or legal persons in court
proceedings.
8. The processing concerns such personal information as is necessary for the
establishment, exercise or defense of legal claims.
9. The processing concerns such personal information as is necessary when
provided to government or public authority
Excluded Information (Not Protected)

1. Information about any individual who is or was an officer or employee of a

government institution that relates to the position or functions of the
individual, including:

a) The fact that the individual is or was an officer or employee of the

government institution;
b) The title, business address and office telephone number of the
individual;
c) The classification, salary range and responsibilities of the position held
by the individual; and
d) The name of the individual on a document prepared by the individual
in the course of employment with the government

2. Information about an individual who is or was performing service under

contract for a government institution that relates to the services performed,
including the terms of the contract, and the name of the individual given in
the course of the performance of those services [this would apply to
contractors and consultants];
3. Information relating to any discretionary benefit of a financial nature such as
the granting of a license or permit given by the government to an individual,
including the name of the individual and the exact nature of the benefit;
4. Information necessary in order to carry out the functions of public authority
which includes the processing of personal data for the performance by the
independent, central monetary authority and law enforcement and
regulatory agencies of their constitutionally and statutorily mandated
functions. Nothing in this Act shall be construed as to have amended or
repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank
Deposits Act; Republic Act No. 6426, otherwise known as the Foreign
Currency Deposit Act; and Republic Act No. 9510, otherwise known as the
Credit Information System Act (CISA).
5. Information necessary for banks and other financial institutions under the
jurisdiction of the independent, central monetary authority or Bangko Sentral
ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160,
as amended, otherwise known as the Anti-Money Laundering Act and other
applicable laws.

Criminal Offenses under RA 10173

1) Processing personal information or Sensitive personal Information without the consent

of the data subject, or without being authorized under this Act or any existing law

2) Knowingly or negligently dispose, discard or abandon the personal information or

Sensitive Personal Information of an individual in an area accessible to the public or has
otherwise placed the personal information of an individual in its container for trash
collection

3) Having knowledge of a security breach and of the obligation to notify the

Commission pursuant to Section 20 (f), but intentionally or by omission conceals the fact
of such security breach

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 4)Any personal information controller or personal information processor or any of its
officials, employees or agents, who, with malice or in bad faith, discloses unwarranted
or false information relative to any personal information or personal sensitive information
obtained by him or her

5) Any personal information controller or personal information processor or any of its

officials, employees or agents, who discloses to a third party personal information not
covered by the immediately preceding section (on malicious disclosure) without the
consent of the data subject

PENALTIES PROVIDED UNDER RA 10173

SEC. 26. Accessing Personal Information and Sensitive Personal Information Due to
Negligence. – (a) Accessing personal information due to negligence shall be penalized
by imprisonment ranging from one (1) year to three (3) years and a fine of not less than
Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos
(Php2,000,000.00) shall be imposed on persons who, due to negligence, provided
access to personal information without being authorized under this Act or any existing
law.

(b) Accessing sensitive personal information due to negligence shall be penalized by

imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five
hundred thousand pesos (Php500,000.00) but not more than Four million pesos
(Php4,000,000.00) shall be imposed on persons who, due to negligence, provided
access to personal information without being authorized under this Act or any existing
law.

SEC. 28. Processing of Personal Information and Sensitive Personal Information for
Unauthorized Purposes. – The processing of personal information for unauthorized
purposes shall be penalized by imprisonment ranging from one (1) year and six (6)
months to five (5) years and a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be
imposed on persons processing personal information for purposes not authorized by the
data subject, or otherwise authorized under this Act or under existing laws.

The processing of sensitive personal information for unauthorized purposes shall be

penalized by imprisonment ranging from two (2) years to seven (7) years and a fine of
not less than Five hundred thousand pesos (Php500,000.00) but not more than Two
million pesos (Php2,000,000.00) shall be imposed on persons processing sensitive
personal information for purposes not authorized by the data subject, or otherwise
authorized under this Act or under existing laws.

SEC. 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment

ranging from one (1) year to three (3) years and a fine of not less than Five hundred
thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00)
shall be imposed on persons who knowingly and unlawfully, or violating data
confidentiality and security data systems, breaks in any way into any system where
personal and sensitive personal information is stored.

SEC. 33. Combination or Series of Acts. – Any combination or series of acts as defined in
Sections 25 to 32 shall make the person subject to imprisonment ranging from three (3)
years to six (6) years and a fine of not less than One million pesos (Php1,000,000.00) but
not more than Five million pesos (Php5,000,000.00).

Social Media + Credit Rating = Data privacy Violation

Why corporate Officers are Liable?

A head of agency making his acts depend on the recommendations of the Executive
Director or the information Technology Department amplifies the want of even slight

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 care. The duty to obey the law should begin at the top and should not be frustrated
simply because no employee recommended such action. (NPC Decision)

Issue: Extraterritorial Jurisdiction under R.A. 10173

The law covers infractions done by a PIC or PIP engaged in, and, or outside of the
Philippines if:
a) The act, practice or processing relates to personal information about a Philippine
citizen or a resident (Sec. 6,a, Chap 1)
Note. It is the citizenship or Residency of the Data Subject that matters.

b) The entity has a link with the Philippines, and the entity is processing personal
information in the Philippines or even if the processing is outside the Philippines a slong
as it is about Philippine citizens or residents such as, but not limited to, the following:
1) A contract is entered in the Philippines;
2) A juridical entity unincorporated in the Philippines but has central management
and control in the country;
3) An entity that has a branch, agency, office or subsidiary in the Philippines and the
parent or affiliate of the Philippine entity has access to personal information;
(Sec.6,b.1,2,3, Chapter 1)
c) The entity has other links in the Philippines such as, but not limited to:
1) The entity carries on business in the Philippines
2) The personal information was collected or held by an entity in the Philippines
(Note: Here the entity could be an outsourcer, a detective agency or any collector
of e-data, and the e-data was given to another entity)

2 Other links provided by IRR

The natural or juridical person involved in the processing or personal data is found or
established in the Philippines (Sec 4.a., Rule II)
The act, practice or processing of personal data is done or engaged in by an entity
with links to the Philippines, which include: use of equipment located in the country (Sec
4.d.1, Rule II)

Safeguarding the human rights of data subjects over their e-data is the primary
obligation of PICs under the Philippine Data Privacy law. It starts with crafting the right
data policies. But this is not a simple process. The Data Privacy Officer, the C-Suite
Officers and the BOD/BOT members of any PIC must be aware of the intricate
interweaving of various laws and jurisprudence (local and international), technical
solutions, management options, political issues, and linguistic and comprehension
studies and tests concerning online policies to prevent future legal actions relative to
their policies. Ignorance is no longer a luxury nor a defense under the Data Privacy Law.

H. TAX REFORM ACCELERATION AND INCLUSION (TRAIN) LAW

Republic Act No. 10963

Tax Reform Acceleration and Inclusion (TRAIN)

Repealed
 Section 35 – Allowance of Personal Exemption for Individual Taxpayer
 Section 62 – Exemption Allowed to Estates and Trusts
 Section 89 – Notice of Death Filed
INCOME TAX RATES ON INDIVIDUAL CITIZEN AND INDIVIDUAL RESIDENT ALIEN

 Individuals Earning Purely Compensation Income. – shall be taxed based on the

graduated income tax rates
 Individuals Earning Purely Compensation Income from Self-Employment or
Practice of Profession. –
If gross sales/receipts and other non-operating income does not exceed the VAT
threshold of 3M, shall have the option to avail of:

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 1. The graduated rates
OR
2. The 8% tax on gross sales or receipts and other non-operating income in excess
of P250,000 in lieu of: the graduated income tax rates and the percentage tax
under Section 116

 A non-VAT registered taxpayer who initially opted to avail of the 8% option but
has exceeded the VAT threshold during the taxable year:
 shall be subject to 3% Percentage Tax on the first P3,000,000 of his/her
gross sales/receipts under Section 116 of the Tax Code, as amended,
without imposition of any penalty if payment is timely made on the
following month when the threshold is breached
 the amount over the threshold shall be subject to VAT prospectively, and
the 8% income tax previously paid shall be credited to the Income tax
Due under the graduated rates provided in Section 24(A)(2)(a).
 Taxpayer shall be considered as having availed of the graduated income tax
rates, unless the taxpayer signifies in the 1st Quarter income tax return or the initial
quarter of the taxable year after the commencement of a new
business/practice of profession, the intention to elect the 8% income tax rate
and such election shall be irrevocable and no amendment of option shall be
made for the said taxable year.
 Taxpayers who did not qualify for the 8% tax rate shall be subject to the
graduated income tax rate, and shall also be subject to the applicable business
tax/es, if any.
 Taxpayers who cannot avail of the 8% income tax rate:
 Those subject to Other Percentage Taxes under Title V of the Tax Code, as
amended, except those subject under Section 116 of the same Title
 Partners of a General Professional Partnership (GPP) since their distributive
share from GPP is already net of cost and expenses
INDIVIDUALS NOT REQUIRED TO FILE ITR

 AN INDIVIDUAL EARNING PURELY COMPENSATION INCOME WHOSE TAXABLE

INCOME DOES NOT EXCEED TWO HUNDRED FIFTY THOUSAND PESOS (P250,000);
 AN INDIVIDUAL EARNING PURELY COMPENSATION INCOME from one employer
only, whose tax due has been correctly withheld; The Certificate of Withholding
filed by the employer, duly stamped “Received” by the BIR, shall be tantamount
to the substituted filing of the ITR of said employee.
(Individuals earning purely compensation income from more than one employer
shall be required to file an annual income tax return, regardless of the amount of
income earned.)

TIME OF FILING OF INDIVIDUAL INCOME TAX RETURN

Individuals engaged in business/practice of profession, regardless of

sales/receipts/income, have to file:
a. Quarterly income tax return on or before May 15, August 15, and November 15
for the first, second, and third quarter of the current year, respectively, under
Sec. 74(A); and
b. Annual income tax return, not later than the fifteenth (15th) day of the fourth
month following the close of the calendar year or April 15 as provided under
Section 51(C)(1) of the Tax Code.

 Note: The creditable tax withheld is deductible from the income tax due.
ESTATE TAX
What are the allowable deductions for Estate Tax Purposes?
For a citizen or resident alien
1. Standard Deduction – P5,000,000
2. Claims against the estate.

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 3. Claims of the deceased against insolvent persons where the value of the
decedent’s interest therein is included in the value of the decedent’s interest
therein is included in the value of the gross estate
4. Unpaid mortgages, and casualty losses
5. Property previously taxed
6. Transfers for public use
7. The family home – fair market value but not to exceed P10,000,000
8. Amount received by heirs under republic Act No. 4917
Net share of the surviving spouse in the conjugal partnership or community property

DONOR’S TAX

TRANSFER FOR LESS THAN ADEQUATE AND FULL CONSIDERATION

Where property, other than real property referred to in Section 24(D), is
transferred for less than an adequate and full consideration in money or money’s worth,
then the amount by which the FMV of the property exceeded the value of the
consideration shall, for the purpose of the tax imposed, be deemed a gift, and shall be
included in computing the amount of gifts made during the calendar year: Provided,
however, that a sale, exchange, or other transfer of property made in the ordinary
course of business (a transaction which is a bona fide, at arm’s length, and free from
any donative intent) will be considered as made for an adequate and full
consideration in money or money’s worth.

SEC. 232. Keeping of Books of Accounts

Corporations, companies, partnerships or persons whose gross quarterly annual sales,
earnings, receipts, or output exceed One hundred fifty thousand pesos (P150,000) P3M
shall have their books of accounts audited and examined yearly by independent
Certified Public accountants.

SEC. 237. Issuance of Receipts or Sales or Commercial Invoices

All persons subject to an internal revenue tax shall, for each sale or transfer of
merchandise or for services rendered valued at Twenty five pesos (P25.00) P100 or
more, issue duly registered receipts or sales or commercial invoices, prepared at least in
duplicate, showing the date of transaction, quantity, unit cost and description of
merchandise or nature of service. Provided, however, that where the receipt is issued to
cover payment made as rentals, commissions, compensations, fees, receipts, or
invoices shall be issued which shall show the name, business style, if any, and address of
the purchaser, customer, or client. Provided, further, that where the purchaser is a VAT-
registered person, in addition to the information herein required, the invoice or receipt
shall further show the Taxpayer Identification Number (TIN) of the purchaser.

SEC. 264. Failure or refusal to Issue Receipts or Sales or Commercial Invoices, Violations
related to the Printing of such Receipts or Invoices and other violations
Fine: Not less than P500, 000 but no more than P10,000,000 and imprisonment of not less
than 6 years but not more than 10 years

I. OVERVIEW OF COURT-ANNEXED MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION

By: Judge Gerely C. Rico-Cruz
4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan

What is ADR?
 A wide variety of processes, practices, and techniques.
 Arbitration and mediation are the best known and most frequently used types of
ADR, but not the only ones.
 Mini-trials.
 Early neutral evaluations.
 Summary jury trials (less well-known form of ADR and not adopted by our ADR
Law).
What is the State Policy on ADR?

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 Per Republic Act No. 9285 – ADR Law (April 2, 2004), to:
 Promote party autonomy in the resolution of disputes;
 Promote the freedom of the party to make their own arrangements to resolve
their disputes;
 To achieve speedy and impartial justice and declog court dockets;
 To provide an efficient tool and an alternative procedure for the resolution of
appropriate cases;
 To enlist active private sector participation in the settlement of disputes;
State Policy
Freedom of the party to make their own arrangements to resolve their disputes, thus:
1) The parties may agree to refer one or more or all issues arising in a dispute or
during its pendency to other forms of ADR (i.e. mediation, mini trial, etc.);
2) By written agreement of the parties to a dispute, an arbitrator may act as
mediator and a mediator may act as arbitrator;
3) The parties may also agree in writing that, following a successful mediation, the
mediator shall issue the settlement in the form of an arbitral award (Sec. 36, ADR
Law).
What is ADR System?
 Any process or procedure used to resolve a dispute or controversy, other that by
adjudication of a presiding judge of a court or an officer of a government
agency;
 A neutral third party participates to assist in the resolution of issues.
What are the ADR System?
 Mediation (INCLUDING CAM);
 Conciliation;
 Arbitration;
 Early neutral evaluation;
 Mini-trial; or
 Any combination thereof;
 Judicial Dispute Resolution (A.M. 11-1-6-SC-PHILJA

MARCH 01, 2018

J. CONFLICT OF LAWS
Speaker: Carlito B. Calpatura, Presiding Judge, Makati Regional Trial Court, Branch 145

-Conflict of Laws deals with that part of municipal law of a state which directs its courts
and administrative agencies, when confronted with a legal problem involving a foreign
element, whether or not they should apply a foreign law/s

-The rule of forum non conveniens allows court to decline the exercise of its jurisdiction
over a case as another court may be more adequate to hear and decide over it.

-It is a concept similar to res judicata, litis pendentia, and forum shopping
-Forum non conveniens is a means devised to address parallel litigation arising in
multiple jurisdictions

-Forum non conveniens is a device akin to the rule against forum shopping. It is
designed to frustrate illicit means for securing advantages and vexing litigants that
would otherwise be possible if the venue of litigation (or dispute resolution) were left
entirely to the whim of either party.

-While the rules of forum shopping, litis pendentia, and res judicata are designed to
address the problem of parallel litigation within a single jurisdiction, forum non
conveniens is a means devised to address parallel litigation arising in multiple
jurisdictions

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 -Under the Labor laws of Saudi Arabia and the Philippines, it is illegal and unlawful to
terminate the employment of any woman by virtue of pregnancy.

In resolving the conflicts problem, courts should ask the following questions:
1. Under the law, do I have jurisdiction over the subject matter and the parties to this
case?
2. If the answer is yes, is this a convenient forum to the parties, in light of the facts?
3. If the answer is yes, what is the conflicts rule for this particular problem?
4. If the conflicts rule points to a foreign law, has said law been properly pleaded and
proved by the one invoking it?
5. If so, is the application or enforcement of the foreign law in the forum one of the
basic exceptions to the application of foreign law? In short, is there any strong policy or
vital interest of the forum that is at stake in this case and which should preclude the
application of foreign law?

K. THE ART OF DIRECT EXAMINATION

By: Jose Armand C. Arevalo
UP Institute for the Administration of Justice, UP Law Center

What is Direct Exam?

-The examination-in-chief of a witness by the party presenting him on the facts relevant
to the issue. (Rule 132, Sec. 5)

Cause of Action
-A cause of action is the act or omission by which a party violates a right of another.
(Rule 2, Sec 2)
-WHO did WHAT
-WHEN, WHERE to WHOM
-WHY
-HOW

Theory of the CASE

-A theory of the case is simply your position and approach to all undisputed evidence
which will be presented at trial. You must integrate the undisputed facts with your
version of the disputed facts to create a cohesive, logical position at trail. That position
must remain consistent during each phase of the trial. At the conclusion of the trial your
position must be the more plausible explanation of what really happened to the jury.

Case Analysis
-Is the examination of all the issues to reveal possible solutions.
-What is this case about?
-Case theory is the core of the strategy to influence perception on the issues to have
them resolved in some way
-Re-direct examination – After the Cross-Examination of the witness has been
conducted, he may be re-examined by the party calling him to explain or
supplemental his answer given during the cross-examination. On re-direct examination,
question matters not dealt with during the cross-examination may be allowed by the
court in its discretion. (Rule 132, Sec. 7)

DOs and DON’Ts

- DON’T cram
- DO 5W + H
- DON’T lead
- DON’T use looping questions
- DON’T assume
- DON’T use admitted or proven facts
- DON’T use hearsay evidence
- DO anticipate objections
- DON’T underestimate

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 L. THE ART OF CROSS-EXAMINATION
By: Jose Armand C. Arevalo
UP Institute for the Administration of Justice, UP Law Center

-Process of questioning the adverse witness “As to any matters stated in the direct
examination, or connected therewith, with sufficient fullness and freedom to test hi
accuracy and truthfulness and freedom from interest or bias, or reverse, and to elicit all
important facts bearing upon the issue.”(Sec. 6, Rule 132, RC)

-It requires the greatest ingenuity; a habit of logical thought; clearness of perception in
general; infinite patience and self-control; power to read men’s minds intuitively, to
judge their characters by faces, to appreciate their motives; ability to act with force
and precision; a masterful knowledge of subject matter itself; and extreme caution;
and, above all, the instinct to discover the weak point in the witness under
examination.(Francis Wellman, Art of Cross-Examination)

-Procedure to test the truth of statements of a witness made on direct examination by

testing the recollection, veracity, accuracy, honesty and bias or prejudice of the
witness, his source of information, his motives, interest and memory, and to exhibit the
improbabilities of his testimony. (People vs Pollaruste)

Purpose
-Cross-Examination serves as a safeguard to combat unreliable testimony, providing
means for discrediting a witness’ testimony, and is in the nature of an attack on the
truth and accuracy of his testimony. The purpose of cross-examination, however, is not
limited to bringing out a falsehood, since it is also a leading and searching inquiry of the
witness for further disclosure touching the particular matters detailed by him in his direct
examination, and it serves to sift, modify, or explain what has been said, in order to
develop new or old facts in a view favorable to the cross-examiner. (People v Rosario)

Ten Commandments on Cross-Examination

1. Be brief
2. Use plain words
3. Use only leading question
4. Be prepared
5. Listen
6. Do not quarrel
7. Avoid repetition
8. Disallow witness explanation
9. Limit questioning, and
10. Save the ultimate point for summation

M. SURVIVING LEGAL AND ETHICAL PERILS OF SOCIAL MEDIA

Social media

 Social interaction using technology (such as the Internet or cell phones) with any
combination of words, picture, video, or audio, with an interactive component.
 It generally encompasses at least three forms:
 (1) Online social networking (which may take the form of a newsletter, personal
journal, or a network of acquaintances for personal or professional use such as
Facebook and LinkedIn);
 (2) Blogs and microblogs, such as Twitter; and
 (3) video-sharing services like YouTube, customer commentary, websites and
other means of sharing user-generated content.

Some Social Media “Duties” of Lawyers

 Duty to blog Ethically
 Duty not to Defame others
 Duty not to Post Humiliating Comments about your Client

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  Duty not to respond to negative comments about you by your clients
 Duty not to threaten your former boss online
 Duty not to Photoshop your ads
 Duty not to practice online while your license is suspended in real time

Different categories of social media e-data & their suggested treatment

1. User’s Public Data, which consist of social media post made public: can be used
for or against the user without any ethical implication for lawyers.
2. Social media post made by the user and marked as “private”: e-discovery
requests should be limited to relevant e-data
3. Post made by others in which the user is merely tagged or referenced: may be
not, or less relevant
4. Metadata: court must decide if they are relevant.

Social Media is here to stay. Survival in the legal profession is no longer measured by the
practice of Big Law but by “dint of the most responsive” and tech savvy lawyers who
can navigate through the legal and ethical morass of social media and deliver
effective service for their clients.

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