July 2009 Philippine Supreme Court Decisions on Criminal Law and Legal/Judicial Ethics

September 1, 2009Hector M. de Leon Jr

Here are selected July 2009 Philippine Supreme Court decisions on criminal law and legal/judicial ethics. Criminal Law Accomplice. To hold a person liable as an accomplice, two elements must concur: (1) community of design, which means that the accomplice knows of, and concurs with, the criminal design of the principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime. In this case, Maliao facilitated the commission of the crime by providing his own house as the venue thereof. His presence throughout the commission of the heinous offense, without him doing anything to prevent the malefactors or help the victim, indubitably show community of design and cooperation, although he had no direct participation in the execution thereof. People of the Philippines vs. Jessie Maliao y Masakit, Norberto Chiong y Discotido and Luciano Bohol y Gamana, Jessie Maliao y Masakit(Accused-Appellant), G.R. No. 178058, July 31, 2009. Alibi. The defense of alibi must fail, especially in light of the fact that two of the prosecution witnesses, BBB and DDD, positively identified accusedappellant as one of the malefactors of the crime. Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial. These defenses, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. People of the Philippines vs.Teodulo Villanueva, Jr., G.R. No. 187152. July 22, 2009 BP 22. Under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil action to recover the amount of the checks. It should be stressed, this policy is intended to discourage the separate filing of the civil action. In fact, the Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourages the consolidation of the civil and criminal cases. Thus, where petitioners rights may be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a separate action to recover civil liability is clearly unwarranted on account of res judicata, for failure of petitioner to appeal the civil aspect of the cases. Anita Cheng vs. Souses William and Tessie Sy, G.R. No. 174238, July 7, 2009. Civil liability. The rule is that every person criminally liable is also civilly liable. Criminal liability will give rise to civil liability only if the felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Every crime gives rise to (1) a criminal action for the punishment of the guilty party and (2) a civil action for the restitution of the thing, repair of the damage, and indemnification for the losses. However, the reverse is not always true. Thus, the rule is that the acquittal of an accused of the crime charged will not necessarily extinguish his civil liability, unless the court declares in a final judgment that the fact from which the civil liability might arise did not exist. Courts can acquit an accused on reasonable doubt but still order payment of civil damages in the same case. It is not even necessary that a separate civil action be instituted. Sonny Romero y Dominguez vs. People of the Philippines, G.R. No. 167546, July 17, 2009. Conspiracy. Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime suggesting concerted action and unity of purpose among them. For this purpose, overt acts of the accused may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. Indeed, jurisprudence dictates that mere presence at the scene of the crime at the time of its commission is not, by itself, sufficient to establish conspiracy at the time of its commission, but it is enough that the malefactors acted in concert pursuant to the same objective. Conspiracy is predominantly a state of mind as it involves the meeting of the minds and intent of the malefactors. The existence of the assent of minds of the coconspirators may be inferred from proof of facts and circumstances which, taken together, indicate that they are parts of the complete plan to commit the crime. People of the Philippines vs. Teodulo Villanueva, Jr., G.R. No. 187152, July 22, 2009 Corpus delicti. Corpus delicti refers to the fact that a crime has been actually committed. It does not refer to the autopsy report evidencing the nature of the wounds sustained by the victim nor the testimony of the physician who conducted the autopsy or medical examination. It is made up of two elements: (a) that a certain result has been proved and (b) that some person is criminally responsible for the act. While the autopsy report of a medico legal expert in cases of murder is preferably accepted to show the extent of injuries suffered by the victim, it is not the only competent evidence to prove the injuries and the fact of death. It may be proved by the testimonies of credible witnesses. People of the Philippines vs. Roger Perez and Danilo Perez, G.R. No. 179154, July 31, 2009. Dangerous Drugs Act; chain of custody requirements. In Malillin vs. People, the Supreme Court laid down the chain of custody requirements that must be met in proving that the seized drugs are the same ones presented in court: (1) testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence; and (2) witnesses should describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the item. People of the Philippines Vs. Elsie Barba, G.R. No. 182420, July 23, 2009. Dangerous Drugs Act; entrapment. In determining the occurrence of entrapment, two tests have been developed: the subjective test and the objective test. Under the subjective view of entrapment, the focus is on the intent or predisposition of the accused to commit a crime. Under the objective view, on the other hand, the primary focus is on the particular conduct of law enforcement officials or their agents and the accuseds predisposition becomes irrelevant. The government agents act is evaluated in the light of the standard of conduct exercised by reasonable persons generally and whether such conduct falls below the acceptable standard for the fair and honorable administration of justice. Courts have adopted the objective test in upholding the validity of a buy-bust operation. In People vs. Doria, the Court stressed that, in applying the objective test, the details of the purported transaction during the buy-bust operation must be clearly and adequately shown, i.e., the initial contact between the poseur-buyer and the pusher, the offer to purchase, and the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The Court further emphasized that the manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. People of the Philippines vs. Arsenio Cortez y Macalindong a.k.a. Archie, G.R. No. 183819, July 23, 2009, Dangerous Drugs Act; non-compliance with procedure. The prosecution justifies the failure of the buy-bust team to have the confiscated sachet photographed with the non-availability of a photographer. And it claims that no DOJ, as well as media representative, arrived at the time and after the buy-bust operation took place. Without passing on the merits of this claim, the Court finds that the integrity, as well as the evidentiary value of the confiscated item, was not shown to have been preserved. While Yema claimed to have marked the plastic sachet at the police station, what was done to it afterwards remains unexplained. And there is no showing that the substance allegedly confiscated was the same substance which was subjected to examination. As earlier mentioned, while during pre-trial appellant admitted the authenticity and due execution of the laboratory report, he denied that the specimen subject thereof was taken from him. More. The request for forensic examination, together with the specimen, was delivered to the laboratory by a certain SPO4 D.R. Mercado (Mercado), who was not part of the buy-bust team, at 11:15 in the morning of October 10, 2003, a day after the conduct of the alleged buy-bust operation. There is no showing, however, under what circumstances Mercado, who did not take the witness stand, came into possession of the specimen. The People of the Philippines vs. Gerald Librea y Camitan, G.R. No. 179937, July 17, 2009. Falsification of documents. Falsification of documents under paragraph 1, Article 172 in relation to Article 171 of the RPC refers to falsification by a private individual, or a

public officer or employee who did not take advantage of his official position, of public, private, or commercial documents. The elements of falsification of documents under paragraph 1, Article 172 of the RPC are: 1. that the offender is a private individual or a public officer or employee who did not take advantage of his official position; 2. that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and

3. that the falsification was committed in a public, official or commercial document. Rosario Panuncio vs. People of the Philippines, G.R. No. 165678, July 17, 2009. Falsification of public documents. Under Article 171 of the Revised Penal Code, for falsification of a public document to be established, the following elements must concur: 1. That the offender is a public officer, employee, or notary public; 2. 3. a) b) c) d) e) f) That he takes advantage of his official position; That he falsifies a document by committing any of the following acts: Counterfeiting or imitating any handwriting, signature or rubric; Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; Making untruthful statements in a narration of facts; Altering true dates; Making any alteration or intercalation in a genuine document which changes its meaning;

g) Issuing in authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; h) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book. Romeo D. Lonzanida vs. People of the Philippines, G.R. Nos. 160243-52, July 20, 2009. Illegal cutting of timber. Section 68 of PD 705 clearly punishes anyone who shall cut, gather, collect or remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority. In this case, petitioner was charged by CENRO to supervise the implementation of the permit. He was not the one who cut, gathered, collected or removed the pine trees within the contemplation of Section 68 of PD 705. He was not in possession of the cut trees because the lumber was used by Teachers Camp for repairs. Petitioner could not likewise be convicted of conspiracy to commit the offense because all his co-accused were acquitted of the charges against them. Petitioner may have been remiss in his duties when he failed to restrain the sawyers from cutting trees more than what was covered by the permit. As the Court of Appeals ruled, petitioner could have informed his superiors if he was really intimidated by Santiago. If at all, this could only make petitioner administratively liable for his acts. It is not enough to convict him under Section 68 of PD 705. Neither could petitioner be liable under the last paragraph of Section 68 of PD 705 as he is not an officer of a partnership, association, or corporation who ordered the cutting, gathering, or collection, or is in possession of the pine trees. Ernesto Aquino vs. People of the Philippines, G.R. No. 165448, July 27, 2009 Impossible crime. The requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. Gemma T. Jacinto vs. People of the Philippines, G.R. No. 162540, July 13, 2009. Kidnapping with rape. Even assuming arguendo that appellant entered an improvident plea of guilt when arraigned, there is no compulsion to remand the case to the trial court for further reception of evidence. While the Court has set aside convictions based on improvident pleas of guilt in capital offenses, which pleas had been the sole basis of the judgment, where the trial court receives evidence to determine precisely whether the accused erred in admitting his guilt, the manner in which the plea is made loses legal significance for the simple reason that the conviction is, independently of the plea, based on evidence proving the commission by the accused of the offense charged. In the present case, even without the plea of guilt of appellant, the evidence presented by the prosecution supports his guilt beyond reasonable doubt of the special complex crime of kidnapping with rape under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. People of the Philippines vs. Renato Talusan y Panganiban, G.R. No. 179187, July 14, 2009. Kidnapping with murder. Appellants were eventually charged with and convicted of the special complex crime of kidnapping with murder, defined in the last paragraph of Article 267 of the Revised Penal Code. In a special complex crime, the prosecution must prove each of the component offenses with the same precision that would be necessary if they were made the subject of separate complaints. In the case at bar, kidnapping was not sufficiently proven. Although appellants bound and gagged Chua and transported him to Bulacan against his will, they did these acts to facilitate his killing, not because they intended to detain or confine him. As soon as they arrived at the locus criminis, appellants wasted no time in killing him. That appellants intention from the beginning was to kill the victim is confirmed by the conversation which Sumipo heard in the car in which Maritess said that a knife would be used to kill him so that it would not create noise. The subsequent demand for ransom was an afterthought which did not qualify appellants prior acts as kidnapping. The crime committed was thus plain Murder. The killing was qualified by treachery. The victim was gagged, bound, and taken from Quezon City to an isolated place in Bulacan against his will to prevent him from defending himself and to facilitate the killing. People of the Philippines vs. Pablo L. Estacio, Jr. and Maritess Ang, G.R. No. 171655, July 22, 2009. Qualified theft. The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customers check payment to her employer and, instead, appropriated it for herself; (2) said property belonged to another the check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of petitioners brother-in-law; (4) it was done without the owners consent petitioner hid the fact that she had received the check payment from her employers customer by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from customers. However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced. The Court must resolve the issue in the negative. Gemma T. Jacinto vs. People of the Philippines, G.R. No. 162540, July 13, 2009. Rape; delay in reporting rape. The Court finds that with respect to the unexplained delay in reporting the alleged incident to the police authorities, the present petition is impressed with merit. It bears noting that AAA claimed to have reported the rape to her mother the day after it happened, the threat to her life notwithstanding. Oddly, however, it took more than two years before such alleged rape was reported to the police and the victim examined by

a physician. The prosecution offered no reasonable or justifiable explanation for the delay nor presented AAAs relative Tita FFF or the barangay captain who reported the matter to the police to shed light on this crucial matter. The lone uncorroborated testimony of a complainant in a rape case suffices to warrant a conviction, provided that it is credible, natural, convincing, and consistent with human nature and the normal course of things. Such testimony should not be received with precipitate credulity, however, but with the utmost caution. After opening the entire criminal case for review and subjecting AAAs testimony to judicial scrutiny, the Court finds her narrative tainted with ambiguity and deficiency on vital points. People of the Philippines vs. Claro Jampas, G.R. No. 177766, July 17, 2009. Robbery with homicide. Robbery with homicide is committed when a person is killed, either by reason or on occasion of the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) 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. A conviction requires certitude that the robbery is the malefactors main purpose and objective, 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. People of the Philippines vs. Jojo Musa y Santos, et al., G.R. No. 170472, July 3, 2009. Robbery with homicide. Our criminal justice system takes the stand that the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. If the prosecution fails to discharge that burden, the accused need not present any evidence. From the foregoing, the prosecution must be able to establish the essential elements of robbery with homicide, to wit: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property belongs to another; (c) the taking is characterized by animo lucrandi; and (d) by reason of the robbery or on the occasion thereof, homicide (used in its generic sense) is committed. Robbery with homicide. Homicide is said to have been committed by reason or on the occasion of robbery if it is 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 eliminate witnesses to the commission of the crime. Given the circumstances surrounding the instant case, we agree with the CA that appellants cannot be convicted of Robbery with Homicide. Indeed, the killing may occur before, during, or after the robbery. And it is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. However, essential for conviction of robbery with homicide is proof of a direct relation, an intimate connection between the robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes are committed at the same time. People of the Philippines vs.. Leo Quemeggen, Juanito De Luna, G.R. No. 178205, July 27, 2009. Smuggling. Smuggling is committed by any person who (1) fraudulently imports or brings into the Philippines any article contrary to law; (2) assists in so doing any article contrary to law; or (3) receives, conceals, buys, sells or in any manner facilitates the transportation, concealment or sale of such goods after importation, knowing the same to have been imported contrary to law. There is no doubt that smuggling was committed in this case. The collective evidence on record shows that the Francisco, Ojeda and Lintag assisted in the unlawful importation of dutiable articles by facilitating their release from the Bureau of Customs without payment of proper duties and taxes. Having the power to order the physical examination of the subject importation, they intentionally did not do so despite the glaring irregularities found on the face of the documents (Formal Entry and Internal Revenue Declaration No. 118302, Invoice No. LPI/99-500 and Bill of Lading). They helped conceal the true nature of the cargo. Thereafter, the cargo, which had the appearance of having been legally imported through their help, was removed from customs premises and was being transported to an undisclosed location. Unfortunately for all the accused, said cargo, which was being guarded and escorted by PO3 Nadora, was intercepted by Presidential Anti-Smuggling Task Force (PASTF) Aduana. Rene M. Francisco vs. People of the Philippines/Oscar A. Ojeda vs. People of the Philippines, G.R. No. 177430/G.R. No. 178935, July 14, 2009. Statutory rape. Under the law and prevailing jurisprudence, the gravamen of the offense of statutory rape as provided under Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below twelve years old. The only elements of statutory rape are: (1) that the offender had carnal knowledge of a woman; and (2) that such woman is under 12 years of age. It is not necessary to prove that the victim was intimidated or that force was used against her because in statutory rape the law presumes that the victim, on account of her tender age, does not and cannot have a will of her own. The absence of spermatozoa in the victims genitalia does not negate rape, the slightest penetration even without emission being sufficient to constitute and consummate the offense. The mere touching of the labia of the womans pudendum or lips of the female organ by the male sexual organ consummates the act. Where the victim is a child, the fact that there was no deep penetration of her vagina and that her hymen was still intact does not negate the commission of rape. Furthermore, the absence of fresh lacerations in the hymen cannot be a firm indication that she was not raped. Hymenal lacerations are not an element of rape. People of the Philippines vs. Benjie Resurrection, G.R. No. 185389, July 7, 2009. Treachery. Treachery exists 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 its execution, without risk to himself arising from the defense which the offended party might make. The events narrated by the prosecution eyewitnesses point to the fact that Fulgencio could not have been aware that he would be attacked by the appellants. There was no opportunity for him to defend himself, as appellants, suddenly and without provocation, stabbed him at the back and on the chest. People of the Philippines vs. Roger Perez and Danilo Perez, G.R. No. 179154, July 31, 2009. Legal/judicial ethics Attorney-client relationship. Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of friendly accommodations, precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC. Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondents patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said: The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. Rolando B. Pacana, Jr. vs. Atty. Maricel Pascual-Lopez, A.C. No. 8243, July 24, 2009. Conduct prejudicial to the best interest of the service. Perez claimed that her transactions with Agustin, Jr. had no relation to her position as court stenographer and that they were private in nature. The Court is not impressed. The image of the Judiciary is mirrored in the conduct of its personnel whether inside or outside the court. Thus, court personnel must exhibit a high sense of integrity not only in the performance of their official duties but also in their personal affairs. While there is nothing wrong in engaging in private business, caution should be taken to prevent the occurrence of dubious circumstances that may impair the image of the Judiciary. Every act of impropriety ultimately affects the dignity of the Judiciary, and the peoples faith in it. As the OCA correctly stated, Perezs activities dragged the Court into the fake receipts scam at the City Treasurers Office. Perez must be held accountable. Liberty M. Toledo vs. Liza Perez, Court Stenographer III, Office of the Clerk of Court, RTC, Manila, A.M. No. P-03-1677 & A.M. No. P-072317, July 15, 2009. Conflict of interest. Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest. Rolando B. Pacana, Jr. vs. Atty. Maricel Pascual-Lopez, A.C. No. 8243, July 24, 2009. Dishonesty. Estonilos act of punching in another employees daily time card falls within the ambit of falsification. Worse, he did not do it for only one coemployee, but for two others. He made it appear as though his co-employees personally punched in their daily time cards. Estonilo also made Padillas

daily time card reflect a log-in time different from the latters actual time of arrival, as well as made Bambillas daily time card falsely show that the latter was at the Supreme Court premises in BaguioCity when he was not there at all. It is patent dishonesty, which inevitably reflects on Estonilos fitness as an employee to continue in office and on the level of discipline and morale in the service. Indeed, dishonesty is a malevolent act that has no place in the judiciary. We have defined dishonesty as the (d)isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.[14] Falsification of daily time records is an act of dishonesty, for which all three respondents must be held administratively liable under Rule XVII, Section 4 of the Omnibus Civil Service Rules and Regulations (Civil Service Rules). Under Rule XIV, Section 21 of the Civil Service Rules, falsification of official documents (such as daily time records) and dishonesty are both grave offenses. As such, they carry the penalty of dismissal from the service with forfeiture of retirement benefits, except accrued leave credits, and perpetual disqualification from reemployment in government service. Re: Unauthorized disposal of unnecessary and scrap materials in the Supreme Court Baguio Compound, and the irregularity on the bundy cards of some personnel therein, A.M. No. 2007-17-SC, July 7, 2009. Dishonesty. Even assuming that the payment of P10,000.00 was made on behalf of the defendant, respondent acknowledged having received a total of P12,500.00 as sheriffs expenses. The estimated expenses which he submitted to and were later approved by the RTC amounted to only P7,500.00, which reveals that complainant had, in fact, overpaid him by P2,500.00. While respondent was able to submit a Liquidation of Expenses dated August 30, 2005 in which he claimed to have spent P13,000.00, he was only able to present two receipts to prove his expenses: (1) P1,500.00 issued on June 6, 2005 as rent for the jeep hired to haul objects and (2)P2,000.00 issued on July 1, 2005 as guarding fee for two (2) tricycles. Notably, it does not appear that said liquidation was approved by the RTC. Respondent has undoubtedly violated Section 4, Canon I of the Code of Conduct for Court Personnel, which provides that court personnel shall not accept any fee or remuneration beyond what they receive or are entitled to in their official capacity. Respondent failed to substantiate that the expenses amounting to P9,500.00, without receipts to qualify the same, was actually incurred and duly accounted for. Geronimo Francisco vs. Sebastian Bolivar, etc., A.M. No. P-06-2212, July 14, 2009. Dishonesty. Respondent was undeserving of the trust reposed in him. Instead of using the money for the bond of the complainants son, he pocketed it. He failed to observe candor, fairness and loyalty in his dealings with his client. He failed to live up to his fiduciary duties. By keeping the money for himself despite his undertaking that he would facilitate the release of complainants son, respondent showed lack of moral principles. His transgression showed him to be a swindler, a deceitful person and a shame to the legal profession. Dolores C. Belleza vs.Atty. Alan S. Macasa, A.C. No. 7815, July 23, 2009. Dishonesty. Dishonesty is a serious offense which has no place in the judiciary. Each false entry in the DTR constitutes falsification and dishonesty. The falsification of a DTR constitutes fraud involving government funds. It bears stressing that the DTR is used to determine the salary and leave credits accruable for the period covered thereby. Falsifying ones DTR to cover up absences or tardiness automatically results in financial losses to the government because it enables an employee to receive salary and earn leave credits for services which were never rendered. Under the Uniform Rules on Administrative Cases in the Civil Service, dishonesty and falsification of official document are punishable with dismissal even for the first offense. However, the Court, in certain instances, has not imposed the penalty of dismissal due to the presence of mitigating factors such as the length of service, acknowledgment of the infractions, and remorse by the respondent. Judge Jaime L. Dojillo, Jr. vs. Concepcion Z. Ching, etc./Concepcion A. Ching vs. Judge Jaime L. Dojillo, Jr., etc., A.M. No. P-06-2245/A.M. No. MTJ-09-1741, July 31, 2009. Execution of judgment. Sheriffs have an important role to play in the administration of justice cannot be overemphasized. They form an integral part, as they are called upon to serve writs, execute all the processes, and carry into effect the orders, of the court. When placed in their hands, it is their duty, in the absence of any instruction to the contrary, to proceed with reasonable celerity and promptness, to execute writs according to their mandate. As noted by the OCA, no restraining order was issued by the appellate court on October 17, 2003 to excuse the delay in the execution of the writ. It was only on October 21, 2003 or four days later that the appellate court issued a temporary restraining order pending resolution of the motion for reconsideration. At all events, even if a writ is later ruled to be improvidently or improperly issued, the sheriff is not in a position to question it, as his duty in executing the same is purely ministerial. Atty. Nelson T. Antolin, et al. vs. Judge Alex L. Quiroz, et al./Edwin V. Garrobo Vs. Judge Alex L. Quiroz, RTV, Pasig City, A.M. No. RTJ-09-2186/A.M. No. RTJ-09-2187, July 14, 2009. Exhaustion of judicial remedies. The rule on exhaustion of judicial remedies does not erase the gross ignorance of the law that he exhibited. It is not a mandatory sine qua non condition for the filing of an administrative case in the way that it is required in the filing of a petition for certiorari under Rule 65 and other similar rules in the Rules of Court. The filing of an administrative case is not an extraordinary remedy that demands that the lower court or tribunal be given every opportunity to review its finding. In fact, it is not a remedy at all required in the underlying case that was attended by gross ignorance to challenge or reverse the ruling in that case. It is a totally separate matter whose objective is to seek disciplinary action against the erring judge. Prosecutor Robert M. Visbal vs. Judge Wenceslao B. Vanilla, MTCC, Br. 2, Tacloban City, A.M. No. MTJ-06-1651, July 15, 2009. Falsification. Although dishonesty through falsification of DTRs is punishable by dismissal, such an extreme penalty cannot be inflicted on an errant employee such as herein respondent, especially so in cases where there exist mitigating circumstances which could alleviate her culpability. Respondent has been Branch Clerk of Court for about ten (10) years and this is her first administrative complaint. The OCA recommended that respondent be suspended from the service for one (1) year without pay, with a warning that a repetition of the same or similar act will be dealt with more severely. Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan Vs. Larizza Paguio-Bacani, Branch COC II, MTC, Meycauayan, Bulacan, A.M. No. P-06-2217, July 30, 2009. Grave abuse of authority. The power to punish for contempt is inherent in all courts so as to preserve order in judicial proceedings as well as to uphold the administration of justice. The courts must exercise the power of contempt for purposes that are impersonal because that power is intended as a safeguard not for the judges but for the functions they exercise. Thus, judges have, time and again, been enjoined to exercise their contempt power judiciously, sparingly, with utmost restraint and with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. Respondent judges act of unceremoniously citing complainant in contempt is a clear evidence of his unjustified use of the authority vested upon him by law. Venancio Inonog vs. Judge Francisco B. Ibay, Presiding Judge, Regional Trial Court, Branch 135, Makati City, A.M. No. RTJ-09-2175, July 28, 2009. Grave misconduct. We thus find petitioner guilty of grave misconduct. By his actuations, he violated the policy of the State to promote a high standard of ethics in the public service. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Public servants must bear in mind this constitutional mandate at all times to guide them in their actions during their entire tenure in the government service. Under the Civil Service Law and its implementing rules, grave misconduct is punishable by dismissal from service. Atty. Emmanuel Pontejos vs. Hon. Aniano Desierto and Restituto Aquino,G.R. No. 148600, July 7, 2009. Grave misconduct. Grave Misconduct is a malevolent transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer or employee which threatens the very existence of the system of administration of justice. Estonilo, Padilla, and Bambilla committed grave misconduct in unlawfully bringing scrap materials out of the court premises and using the court vehicle for the purpose, deviating from the established or definite rule of action. Section 52(A)(3) of the Revised Rules on Administrative Cases in the Civil Service classifies grave as a grave offense punishable by dismissal for the first offense. Re: Unauthorized disposal of unnecessary and scrap materials in the Supreme Court Baguio Compound, and the irregularity on the bundy cards of some personnel therein, A.M. No. 2007-17-SC, July 7, 2009. Grave misconduct. Under Section 8 of Rule 140 of the Rules of Court, it is a serious charge to borrow money or property from lawyers and litigants in a case pending before the court. Under the same provision, an act that violates the Code of Judicial Conduct constitutes gross misconduct,[42] which is also a serious charge. In either instance, a serious charge is punishable by: 1) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations, provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2) suspension from office without salary and other

benefits for more than three but not exceeding six months; or 3) a fine of more than P20,000 but not exceeding P40,000. Concerned Lawyers of Bulacan vs. Presiding Judge Pornillos, RTC Br. 10, Malolos City, A.M. No. RTJ-09-2183, July 7, 2009. Grave misconduct. We do not find respondents guilty of grave misconduct. Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. And when the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall be liable for grave misconduct. Respondents rightfully determined the occupation by the SPFMPCI members unauthorized (albeit on a different basis). The Republic of the Philippines, represented by the Office of the Ombudsman, Ma. Merceditas N. Gutierrez, in her capacity as the Ombudsman vs. Rufino V. Maijares, Roberto G. Ferrera, Alfredo M. Ruba and Romeo Querubin. G.R. Nos. 170615-16. July 9, 2009. Gross ignorance of the law. Instead of first ruling whether the case fell under the Revised Rule on Summary Procedure, Judge Pangilinan immediately issued a warrant of arrest and fixed complainants bail at P2,000. There being no showing that complainant failed to appear in court when required by Judge Pangilinan, the warrant of arrest he issued had no legal basis. Judge Pangilinans faux pas cannot be countenanced. For when a judge shows unfamiliarity with the fundamental rules and procedures, he contributes to the erosion of public confidence in the judicial system and is guilty of gross ignorance of the law and procedures. Lanie Cervantes vs.. Judge Heriberto M. Pangilinan, and Clerk of Court III Carmencita P. Baloco, etc., A.M. No. MTJ-08-1709, July 31, 2009. Gross ineffiency. The Constitution mandates that all cases or matters filed before all lower courts shall be decided or resolved within 90 days from the time they are submitted for decision. Respondent repeatedly ignored this mandate. She also violated Canon 3, Rule 3.05 of the New Code of Judicial Conduct which requires judges to dispose of the courts business promptly and decide cases within the required periods. Failure to comply within the mandated period constitutes a serious violation of the constitutional right of the parties to a speedy disposition of their cases. The Court has always considered a judges delay in deciding cases within the prescribed period of three months as gross inefficiency. Re: Report on the Judicial Audit in Municipal Circuit Trial Court, Jiminez-Sinacaban, Misamis Occidental/ Judge Pricilla Hernandez, A.M. No. 03-170-MCTC, July 14, 2009. Gross inefficiency. No less than the Constitution mandates that all cases or matters must be decided or resolved within twenty-four months from date of submission to the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts. In implementing this constitutional mandate, Section 5, Canon 6 of the New Code of Judicial Conduct exhorts in the section on Competence and Diligence that judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. Failure to decide cases within the reglementary period, without strong and justifiable reason, constitutes gross inefficiency warranting the imposition of an administrative sanction on the defaulting judge. Re: Report on the Judicial Audit Conducted at the Metropolitan Trial Court, Branch 55, Malabon City, A.M. No. 08-3-73-MeTC, July 31, 2009. Falure to decide cases. Judge Pantanosas, Jr.s explanation that the undecided cases were never brought to his attention during his incumbency deserves scant consideration. Proper and efficient court management is the responsibility of the judge, and he is the one directly responsible for the proper discharge of his official functions. It should be emphasized that the responsibility of making a physical inventory of cases primarily rests on the presiding judge. He ought to know the cases submitted to him for decision or resolution, and he is expected to keep his own record of cases so that he may act on them without undue delay. It is incumbent upon him to devise an efficient recording and filing system in his court so that no disorderliness can affect the flow of cases and their speedy disposition. A judge cannot take refuge behind the inefficiency or mismanagement of his court personnel since proper and efficient court management is his responsibility. Court personnel are not the guardians of a judges responsibilities. The efficient administration of justice cannot accept as an excuse the shifting of the blame from one court personnel to another. A judge should be the master of his own domain and take responsibility for the mistakes of his subordinates. Re: Report on the Judicial Audit Conducted in the Municipal Trial Court in Cities, Branch 2, Cagayan De Oro City, A.M. No. 02-8-207-MTCC, July 27, 2009. Negligence. Respondent is guilty of simple neglect of duty, defined as the failure to give attention to a task or the disregard of a duty due to carelessness or indifference,[16] which is classified as a less grave offense under the Uniform Rules on Administrative Cases in the Civil Service and punishable with suspension for one month and one day to six months for the first offense and dismissal for the second offense. Office of the Court Administrator vs. Officer-in-charge and Legal Researcher Nilda Cinco, RTC, Br. 28, Catbalogan, Samar, A.M. No. P-06-2219, July 13, 2009. Negligence; failure to file memorandum on appeal. The appellant is duty-bound to submit his memorandum on appeal. Such submission is not a matter of discretion on his part. His failure to comply with this mandate or to perform this duty will compel the RTC to dismiss his appeal. Respondents failure to file the required pleadings is per se a violation of Rule 18.03 of the Code of Professional Responsibility. Natividad Uy vs.. Atty. Braulio RG Tansisin, A.C. No. 8252, July 21, 2009. Negligence. A lawyers negligence in the discharge of his obligations arising from the relationship of counsel and client may cause delay in the administration of justice and prejudice the rights of a litigant, particularly his client. Thus, from the perspective of the ethics of the legal profession, a lawyers lethargy in carrying out his duties to his client is both unprofessional and unethical. If his clients case is already pending in court, a lawyer must actively represent his client by promptly filing the necessary pleading or motion and assiduously attending the scheduled hearings. This is specially significant for a lawyer who represents an accused in a criminal case. Dolores C. Belleza vs. Atty. Alan S. Macasa, A.C. No. 7815, July 23, 2009. Negligence. When respondent accepted the amount of P50,000.00 from complainant, it was understood that he agreed to take up the latters case, and that an attorney-client relationship between them was established. From then on, it was expected that he would serve his client, herein complainant, with competence, and attend to her cause with fidelity, care and devotion. The act of receiving money as acceptance fee for legal services in handling complainants case and subsequently failing to render such services is a clear violation of Canon 18 of the Code of Professional Responsibility, which provides that a lawyer shall serve his client with competence and diligence. Trinidad H. Camara, et al. vs. Atty. Oscar Amondy Reyes, A.C. No. 6121, July 31, 2009. Simple misconduct. Misbehavior by court employees within and around their vicinity necessarily diminishes their dignity. Any fighting or misunderstanding becomes a disgraceful sight reflecting adversely on the good image of the Judiciary. Indeed, the two are guilty of conduct unbecoming of court employee amounting to simple misconduct, classified as a less grave offense under the Uniform Rules on Administrative Cases in the Civil Service which merits suspension for one month and one day to six months for the first offense, and dismissal for the second offense. Under Section 53 of the Uniform Rules on Administrative Cases in the Civil Service, in the determination of the penalties to be imposed, the extenuating, mitigating, aggravating or alternative circumstances, among other considerations, may be taken into account. As recommended then, the length of service, the performance ratings, and the number of times an employee has been administratively charged may be considered. Re: Fighting incident between two(2) SC shuttle bus drivers, namely, Messrs. Edilbert L. Idulsa and Ross C. Romero,A.M. No. 2008-24-SC, July 14, 2009. Simple misconduct. Sheriff Jundarinos duty is to implement the Writ of Execution dated 28 November 2007 at No. 2519 Granate St., Sta.Ana, Manila. Given Quilos assertions that his residence was actually at No. 2518 Granate St., San Andres Bukid, Manila, and that he was not even a party to Civil Case No. 158273-CV, the more prudent course of action for Sheriff Jundarino was to defer implementation of the said Writ until a determination by the MeTC of Quilos Motion to Quash the same. It bears to stress that said Motion was already scheduled for hearing on 28 March 2008, just a day after Sheriff Jundarinos second visit to Quilos residence on 27 March 2008. Without even considering whether Quilos residence is the same as the property involved in Civil Case No. 158273-CV, the Court finds that Sheriff Jundarinos acts herein i.e., his rude and inappropriate remarks and aggressive behavior during his visits to Quilos residence on 12 February 2008 and 27 March 2008 to implement the Writ of Execution issued in the aforementioned case; as well as his unreasonable insistence on implementing the said Writ on 27 March 2008 despite the fact that Quilos Motion to Quash the same was already set to be heard the very next day, 28 March 2008 constitute simple misconduct. Edgardo A. QuiloVs. Rogelio G. Jundarino, Sheriff III, Metropolitan Trail Court, Branch 19, Manila, A.M. No. P-09-2644, July 30, 2009.

Simple misconduct. Mom-issuance of official receipt for stenpgraphic fees is simple misconduct. Gaspar R. Dutosme Vs. Atty. Rey D. Caayona, A.M. No. P-08-2578, July 31, 2009. Unauthorized practice of law. Additionally, a judge should not permit a law firm, of which he was formerly an active member, to continue to carry his name in the firm name as that might create the impression that the firm possesses an improper influence with the judge which consequently is likely to impel those in need of legal services in connection with matters before him to engage the services of the firm. A judge cannot do indirectly what the Constitution prohibits directly, in accordance with the legal maxim,quando aliquid prohibitur ex directo, prohibitur et per obliquum or what is prohibited directly is prohibited indirectly. By allowing his name to be included in the firm name Bartolome Lelina Calimag Densing & Associates Law Offices while holding a judicial office, he held himself to the public as a practicing lawyer, in violation of the Rules and the norms of judicial ethics. Under Sections 9 and 11(B), Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10 SC, unauthorized practice of law is classified as a less serious charge punishable by suspension from office without salary and other benefits for not less than one nor more than three months, or a fine of more than P10,000 but not exceeding P20,000. Atty. Florencio Alay Binalay vs. Judge Elias O. Lelina, Jr., A.M. No. P-08-2132, July 31, 2009. Violation of lawyers oath. Respondent violated Rule 1.01 of the Code of Professional Responsibility which mandates lawyers to refrain from engaging in unlawful, dishonest, immoral or deceitful conduct. For, as the IBP found, he engaged in deceitful conduct by, inter alia, taking advantage of the complaint against CDO to advance his interest to obtain funds for his BATAS Foundation and seek sponsorships and advertisements for the tabloids and his television program. He also violated Rule 13.02 of the Code of Professional Responsibility. For despite the pendency of the civil case against him and the issuance of a status quo order restraining/enjoining further publishing, televising and broadcasting of any matter relative to the complaint of CDO, respondent continued with his attacks against complainant and its products. At the same time, respondent violated Canon 1 also of the Code of Professional Responsibility, which mandates lawyers to uphold the Constitution, obey the laws of the land and promote respect for law and legal processes. For he defied said status quo order, despite his (respondents) oath as a member of the legal profession to obey the laws as well as the legal orders of the duly constituted authorities. Foodsphere, Inc. vs. Atty. Melanio L. Mauricio, Jr., A.C. No. 7199, July 22, 2009.

Supreme Court of idiots

September 3, 2009Hector M. de Leon Jr

After Senator Miriam Defensor-Santiago was not considered for the position of Chief Justice by the Judicial and Bar Council, she delivered a speech on the Senate floor and was quoted as saying: I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots. . . In a sworn letter complaint dated December 22, 2006, a certain Antero J. Pobre asked the Supreme Court to undertake disbarment proceedings or other disciplinary action against Senator Santiago on the ground that her statements reflected a total disrespect on the part of the speaker towards then Chief Justice Artemio Panganiban and the other members of the Court and constituted direct contempt of court. In her comment, Senator Santiago, through counsel, did not deny making the statements. However, she explained that those statements were covered by the constitutional provision on parliamentary immunity, being part of a speech she delivered in the discharge of her duty as member of Congress. The purpose of her speech, according to her, was to bring out in the open controversial anomalies in governance with a view to future remedial legislation. The Supreme Court agreed with Senator Santiago. In Antero J. Pobre vs. Sen. Miriam Defensor-Santiago, A.C. No. 7399, August 25, 2009, it ruled: The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of the Constitution, which provides: A Senator or Member of the House of Representative shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. Explaining the import of the underscored portion of the provision, the Court, in Osmea, Jr. v. Pendatun, said: Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose is to enable and encourage a representative of the public to discharge his public trust with firmness and success for it is indispensably necessary that he should enjoy the fullest liberty of speech and that he should be protected from resentment of every one, however, powerful, to whom the exercise of that liberty may occasion offense. As American jurisprudence puts it, this legislative privilege is founded upon long experience and arises as a means of perpetuating inviolate the functioning process of the legislative department. Without parliamentary immunity, parliament, or its equivalent, would degenerate into a polite and ineffective debating forum. Legislators are immune from deterrents to the uninhibited discharge of their legislative duties, not for their private indulgence, but for the public good. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a judges speculation as to the motives. This Court is aware of the need and has in fact been in the forefront in upholding the institution of parliamentary immunity and promotion of free speech. Neither has the Court lost sight of the importance of the legislative and oversight functions of the Congress that enable this representative body to look diligently into every affair of government, investigate and denounce anomalies, and talk about how the country and its citizens are being served. Courts do not interfere with the legislature or its members in the manner they perform their functions in the legislative floor or in committee rooms. Any claim of an unworthy purpose or of the falsity and mala fides of the statement uttered by the member of the Congress does not destroy the privilege. The disciplinary authority of the assembly and the voters, not the courts, can properly discourage or correct such abuses committed in the name of parliamentary immunity. For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. It is felt, however, that this could not be the last word on the matter. While the Supreme Court dimissed the complaint, it felt that such should not be the last word on the matter. It added: The Court wishes to express its deep concern about the language Senator Santiago, a member of the Bar, used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. To reiterate, she was quoted as stating that she wanted to spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, and calling the Court a Supreme Court of idiots. . . The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty. Santiago for what otherwise would have constituted an act of utter disrespect on her part towards the Court and its members. The factual and legal circumstances of this case, however, deter the Court from doing so, even without any sign of remorse from her. Basic constitutional consideration dictates this kind of disposition. We, however, would be remiss in our duty if we let the Senators offensive and disrespectful language that definitely tended to denigrate the institution pass by. It is imperative on our part to re-instill in Senator/Atty. Santiago her duty to respect courts of justice, especially this Tribunal, and remind her

anew that the parliamentary non-accountability thus granted to members of Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the peoples representatives, to perform the functions of their office without fear of being made responsible before the courts or other forums outside the congressional hall. It is intended to protect members of Congress against government pressure and intimidation aimed at influencing the decision-making prerogatives of Congress and its members. The Rules of the Senate itself contains a provision on Unparliamentary Acts and Language that enjoins a Senator from using, under any circumstance, offensive or improper language against another Senator or against any public institution. But as to Senator Santiagos unparliamentary remarks, the Senate President had not apparently called her to order, let alone referred the matter to the Senate Ethics Committee for appropriate disciplinary action, as the Rules dictates under such circumstance. The lady senator clearly violated the rules of her own chamber. It is unfortunate that her peers bent backwards and avoided imposing their own rules on her.

Legalese 2009 (Week 35)

September 5, 2009Hector M. de Leon Jr

Lexicon by-laws rules adopted by a corporation for its internal government (see Corporation Code of the Philippines Annotated, p. 441 [2006]). Lexplore Sec. 46. Adoption of by-laws. Every corporation formed under this Code must, within one (1) month after receipt of official notice of the issuance of its certificate of incorporation by the Securities and Exchange Commission, adopt a code of by-laws for its government not inconsistent with this Code. For the adoption of by-laws by the corporation the affirmative vote of the stockholders representing at least a majority of the outstanding capital stock, or of at least a majority of the members in case of non-stock corporations, shall be necessary. The by-laws shall be signed by the stockholders or members voting for them and shall be kept in the principal office of the corporation, subject to the inspection of the stockholders or members during office hours. A copy thereof, duly certified to by a majority of the directors or trustees countersigned by the secretary of the corporation, shall be filed with the Securities and Exchange Commission which shall be attached to the original articles of incorporation. . . (Corporation Code) Lexpound A corporation may provide in its by-laws for: (1) the time, place and manner of calling and conducting regular or special meetings of the directors or trustees; (2) the time and manner of calling and conducting regular or special meetings of the stockholders or members; (3) the required quorum in meetings of stockholders or members and the manner of voting therein; (4) the form for proxies of stockholders and members and the manner of voting them; (5) the qualifications, duties and compensation of directors or trustees, officers and employees; (6) the time for holding the annual election of directors of trustees and the mode or manner of giving notice thereof; (7) the manner of election or appointment and the term of office of all officers other than directors or trustees; (8) the penalties for violation of the by-laws; (9) in the case of stock corporations, the manner of issuing stock certificates; and (10) such other matters as may be necessary for the proper or convenient transaction of its corporate business and affairs. (Corporation Code, sec. 47) Lexcogitate X Corporation failed to adopt by-laws within the one month period prescribed by the Corporation Code. Does that result in the automatic dissolution of Company X?

August 2009 Philippine Supreme Court Decisions on Political Law

September 7, 2009Hector M. de Leon Jr

Here are selected August 2009 Philippine Supreme Court decisions on political law: Constitutional law Congress; legislative immunity. The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of the Constitution. As American jurisprudence puts it, this legislative privilege is founded upon long experience and arises as a means of perpetuating inviolate the functioning process of the legislative department. Without parliamentary immunity, parliament, or its equivalent, would degenerate into a polite and ineffective debating forum. Legislators are immune from deterrents to the uninhibited discharge of their legislative duties, not for their private indulgence, but for the public good. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a judges speculation as to the motives. This Court is aware of the need and has in fact been in the forefront in upholding the institution of parliamentary immunity and promotion of free speech. Neither has the Court lost sight of the importance of the legislative and oversight functions of the Congress that enable this representative body to look diligently into every affair of government, investigate and denounce anomalies, and talk about how the country and its citizens are being served. Courts do not interfere with the legislature or its members in the manner they perform their functions in the legislative floor or in committee rooms. Any claim of an unworthy purpose or of the falsity and mala fides of the statement uttered by the member of the Congress does not destroy the privilege. The disciplinary authority of the assembly and the voters, not the courts, can properly discourage or correct such abuses committed in the name of parliamentary immunity. For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. It is felt, however, that this could not be the last word on the matter. Antero J. Pobre vs. Sen. Miriam Defensor-Santiago, A.C. No. 7399. August 25, 2009. Double jeopardy; judgment of acquittal. Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent. A judgment of acquittal is final and is no longer reviewable. It is also immediately executory and the State may not seek its review without placing the accused in double jeopardy. The Constitution has expressly adopted the double jeopardy policy and thus bars multiple criminal trials, thereby conclusively presuming that a second trial would be unfair if the innocence of the accused has been confirmed by a previous final judgment. Further prosecution via an appeal from a judgment of acquittal is likewise barred because the government has already been afforded a complete opportunity to prove the criminal defendants culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying reasons supporting the constitutional ban on multiple trials applies and becomes compelling. The reason is not only the defendants already established innocence at the first trial where he had been placed in peril of conviction, but also the same untoward and prejudicial consequences of a second trial initiated by a government who has at its disposal all the powers and resources of the State. Unfairness and prejudice would necessarily result, as the government would then be allowed another opportunity to persuade a second trier of the defendants guilt while strengthening any weaknesses that had attended the first trial, all in a process where the governments power and resources are once again employed against the defendants individual means. That the second opportunity comes via an appeal does not make the effects any less prejudicial by the standards of reason, justice and conscience. Thus, the absolute and inflexible rule is that the State is proscribed from appealing the judgment of acquittal through either a regular appeal under Rule 41 of the Rules of Court, or an appeal by certiorari on pure questions of law under Rule 45 of the same Rules. People of the Philippines vs. Dir. Cesar P. Nazareno, Dir. Evelino Nartatez, Dir. Nicasio Ma. S. Custodio and The Sandiganbayan, G.R. No. 168982, August 5, 2009. Eminent domain; just compemsation . Eminent domain is the authority and right of the State, as sovereign, to take private property for public use upon observance of due process of law and payment ofjust compensation.

Just compensation is the full and fair equivalent of the property sought to be expropriated. Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax declarations thereon. The measure is not the takers gain but the owners loss. To be just, the compensation must be fair not only to the owner but also to the taker. Just compensation is based on the price or value of the property at the time it was taken from the owner and appropriated by the government. However, if the government takes possession before the institution of expropriation proceedings, the value should be fixed as of the time of the taking of said possession, not of the filing of the complaint. The value at the time of the filing of the complaint should be the basis for the determination of the value when the taking of the property involved coincides with or is subsequent to the commencement of the proceedings. The procedure for determining just compensation is set forth in Rule 67 of the 1997 Rules of Civil Procedure. Section 5 of Rule 67 partly states that [u]pon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. However, we held in Republic v. Court of Appeals that Rule 67 presupposes a prior filing of complaint for eminent domain with the appropriate court by the expropriator. If no such complaint is filed, the expropriator is considered to have violated procedural requirements, and hence, waived the usual procedure prescribed in Rule 67, including the appointment of commissioners to ascertain just compensation. In National Power Corporation v. Court of Appeals, we clarified that when there is no action for expropriation and the case involves only a complaint for damages or just compensation, the provisions of the Rules of Court on ascertainment of just compensation (i.e., provisions of Rule 67) are no longer applicable, and a trial before commissioners is dispensable. Republic of the Philippines through the Department of Public Works and Highways vs. Court of Appeals and Rosario Rodriguez Reyes, G.R. No. 160379, August 14, 2009. Eminent domain; just compensation. PD 27 and RA 6657 provide different factors for the computation of just compensation. The former uses average crop harvest as a consideration, whereas, the latter uses the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors as factors for consideration in determining just compensation. In the case at bar, it is undisputed by the parties that the lands were acquired under PD 27. Moreover, it is also undisputed that just compensation has not yet been settled prior to the passage of RA 6657. Thus, the issue to be determined is what law shall govern in the determination of just compensation. If just compensation was not settled prior to the passage of RA 6657, it should be computed in accordance with the said law, although the property was acquired under PD 27. Department of Agrarian Reform (etc.) vs. Carmen S. Tongson, G.R. No. 171674, August 4, 2009. Eminent domain; taking. It is the date of the issuance of emancipation patents that should serve as the reckoning point for purposes of computation of just compensation. Copies of the emancipation patents issued to the farmer-beneficiaries, however, have not been attached to the records of the case. Department of Agrarian Reform (etc.) vs. Carmen S. Tongson, G.R. No. 171674, August 4, 2009. Free access clause; court filing fees. The basis for the exemption from legal and filing fees is the free access clause, embodied in Sec. 11, Art. III of the 1987 Constitution. The importance of the right to free access to the courts and quasi judicial bodies and to adequate legal assistance cannot be denied. A move to remove the provision on free access from the Constitution on the ground that it was already covered by the equal protection clause was defeated by the desire to give constitutional stature to such specific protection of the poor. In implementation of the right of free access under the Constitution, the Supreme Court promulgated rules, specifically, Sec. 21, Rule 3, Rules of Court, and Sec. 19, Rule 141, Rules of Court. The clear intent and precise language of the aforequoted provisions of the Rules of Court indicate that only a natural party litigant may be regarded as an indigent litigant. The Good Shepherd Foundation, Inc., being a corporation invested by the State with a juridical personality separate and distinct from that of its members, is a juridical person. Among others, it has the power to acquire and possess property of all kinds as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. As a juridical person, therefore, it cannot be accorded the exemption from legal and filing fees granted to indigent litigants. Query of Mr. Roger C. Prioreschi re exemption from legal and filing fees of the Good Shepherd Foundation, Inc., A.M. No. 09-6-9-SC, August 19, 2009. Laws; presumption of constitutionality. Every statute is presumed to be constitutional. The presumption is that the legislature intended to enact a valid, sensible and just law. Those who petition the court to declare a law unconstitutional must show thta there is a clear and unequivocal breach of the Constitution, not merely a doubtful, speculative or argumentative one. Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico vs. Commission on Elections, G.R. No. 177508, August 7, 2009. Laws; title. Petitioner alleges that the title of RA 9369 is misleading because it speaks of poll automation but contains substantial provisions dealing with the manual canvassing of election returns. Petitioner also alleges that Sections 34, 37, 38, and 43 are neither embraced in the title nor germane to the subject matter of RA 9369. The constitutional requirement that every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof has always been given a practical rather than a technical construction. The requirement is satisfied if the title is comprehensive enough to include subjects related to the general purpose which the statute seeks to achieve. The title of a law does not have to be an index of its contents and will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title. Moreover, a title which declares a statute to be an act to amend a specified code is sufficient and the precise nature of the amendatory act need not be further stated. RA 9369 is an amendatory act entitled An Act Amending Republic Act No. 8436, Entitled An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and For Other Purposes. Clearly, the subject matter of RA 9369 covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP 881), Republic Act No. 7166 (RA 7166), and other related election laws to achieve its purpose of promoting transparency, credibility, fairness, and accuracy in the elections. The provisions of RA 9369 assailed by petitioner deal with amendments to specific provisions of RA 7166 and BP 881, specifically: (1) Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA 7166, respectively; and (2) Section 43 of RA 9369 amends Section 265 of BP 881. Therefore, the assailed provisions are germane to the subject matter of RA 9369 which is to amend RA 7166 and BP 881, among others. Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico vs. Commission on Elections, G.R. No. 177508, August 7, 2009. Non-impairment of contract. Petitioner assails the constitutionality of the provision which fixes the per diem of poll watchers of the dominant majority and dominant minority parties at poll election day. Petitioner argues that this violates the freedom of the parties to contract and their right to fix the terms and conditions of the contract they see as fair, equitable and just. Petitioner adds that this is a purely private contract using private funds which cannot be regulated by law. There is no violation of the non-impairment clause. First, the non- impairment clause is limited in application to laws that derogate from prior acts or contracts by enlarging, abridging or in any manner changing the intention of the parties. There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties. As observed by the OSG, there is no existing contract yet and, therefore, no enforceable right or demandable obligation will be impaired. RA 9369 was enacted more than three months prior to the 14 May 2007 elections. Hence, when the dominant majority and minority parties hired their respective poll watchers for the 14 May 2007 elections, they were deemed to have incorporated in their contracts all the provisions of RA 9369.

Second, it is settled that police power is superior to the non-impairment clause. The constitutional guaranty of non-impairment of contracts is limited by the exercise of the police power of the State, in the interest of public health, safety, morals, and general welfare of the community. Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico vs. Commission on Elections, G.R. No. 177508, August 7, 2009. Presidential electoral tribunal. Petitioner argues that Sections 37 and 38 of RA 9369 violate Section 17, Article VI and Paragraph 7, Section 4, Article VII of the Constitution for encroaching upon the jurisdiciton of the PET and the SET. Congress and the COMELEC en banc do not encroach upon the jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other, are exercised on different occasions and for different purposes. The PET is the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President. The SET is the sole judge of all contests relating to the election, returns, and qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be invoked once the winning presidential, vice presidential or senatorial candidates have been proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall determine only the authenticity and due execution of the certificates of canvass. Congress and the COMELEC en banc shall exercise this power before the proclamation of the winning presidential, vice presidential, and senatorial candidates. Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico vs.Commission on Elections, G.R. No. 177508, August 7, 2009. Strike; illegal strike. It is hornbook principle that the exercise of the right of private sector employees to strike is not absolute (see Section 3 of Article XIII of the Constitution). A. Soriano Aviation vs. Employees Association of A. Soriano Aviation, et al., G.R. No. 166879, August 14, 2009. Taxation; double taxation. Double taxation means taxing the same property twice when it should be taxed only once; that is, taxing the same person twice by the same jurisdiction for the same thing. It is obnoxious when the taxpayer is taxed twice, when it should be but once. Otherwise described as direct duplicate taxation, the two taxes must be imposed on the same subject matter, for the same purpose, by the same taxing authority, within the same jurisdiction, during the same taxing period; and the taxes must be of the same kind or character. Using the aforementioned test, the Court finds that there is indeed double taxation if respondent is subjected to the taxes under both Sections 14 and 21 of Tax Ordinance No. 7794, since these are being imposed: (1) on the same subject matter the privilege of doing business in the City of Manila; (2) for the same purpose to make persons conducting business within the City of Manila contribute to city revenues; (3) by the same taxing authority petitioner City of Manila; (4) within the same taxing jurisdiction within the territorial jurisdiction of the City of Manila; (5) for the same taxing periods per calendar year; and (6) of the same kind or character a local business tax imposed on gross sales or receipts of the business. The City of Manila, Liberty M. Toledo in her capacity as the Treasurer of Manila, et al. vs. Coca-Cola Bottlers Philippines, Inc., G.R. No. 181845, August 4, 2009. Warrantless search; plain view doctrine. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. In this case, the police authorities were in the area because that was where they caught up with petitioner after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in the incident, it was apparent to the police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the firearms. Judge Felimon Abelita, III vs. P/Supt. German Doria and SPO3 Cesar Ramirez, G.R. No. 170672, August 14, 2009. Public Officers Practice of profession. Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. The Section 7 prohibitions continue to apply for a period of one year after the public official or employees resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with. The Section 7 prohibitions are predicated on the principle that public office is a public trust; and serve to remove any impropriety, real or imagined, which may occur in government transactions between a former government official or employee and his or her former colleagues, subordinates or superiors. The prohibitions also promote the observance and the efficient use of every moment of the prescribed office hours to serve the public. Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is not the only prohibition to contend with; Section 5, Canon 3 of the Code of Conduct for Court Personnel also applies. A clerk of court can already engage in the practice of law immediately after her separation from the service and without any period limitation that applies to other prohibitions under Section 7 of R.A. No. 6713. The clerk of courts limitation is that she cannot practice her profession within one year before the office where he or she used to work with. Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court, Branch 81, Romblon, Romblon, on the prohibition from engaging in the private practice of law, A.M. No. 08-6-352-RTC, August 19, 2009. Agrarian law Tenants. To qualify for protection under PD 1517 and avail of the rights and privileges granted by the said decree, the claimant must be: (1) a legitimate tenant of the land for ten (10) years or more; (2) must have built his home on the land by contract; and, (3) has resided continuously for the last ten (10) years. The tenant covered by PD 1517 is, as defined under Section 3(f) thereof, the rightful occupant of land and its structures, but does not include those whose presence on the land is merely tolerated and without the benefit of contract, those who enter the land by force or deceit, or those whose possession is under litigation. Stated differently, those whose possession or occupation of land is devoid of any legal authority or those whose contracts of lease are already terminated, or had already expired, or whose possession is under litigation are not considered tenants under the decree. Conversely, a legitimate tenant is one who is not a usurper or an occupant by tolerance. The petitioners-defendants whose occupation has been merely by the owners tolerance obviously fall outside the coverage of PD 1517 and cannot seek its protection. Francisco Madrid and Edgardo Bernardo vs. Spouses Bonifacio Mapoy and Felicidad Martinez, G.R. No. 150887, August 14, 2009. Election Law COMELEC; powers. We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC the exclusive power to investigate and prosecute cases of violations of election laws. Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. This was an important innovation introduced by the Constitution because this provision was not in the 1935 or 1973] Constitutions. The phrase [w]here appropriate leaves to the legislature the power to determine the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the government. Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico vs.Commission on Elections, G.R. No. 177508, August 7, 2009.

Interest: 6% vs. 12%

September 9, 2009Hector M. de Leon Jr

In the event that a party breaches his obligation to the other contracting party, what rate of interest can he expect to be held liable for? In Maria Soledad Tomimbang vs. Atty. Jose Tomimbang, G.R. No. 165116, August 4, 2009, the Supreme Court reminds us when the rate of 6% per annum applies and when the rate of 12% per annum applies. In Tomimbang, the respondent gave a loan to the petitioner (his sibling). However, the petitioner stopped making monthly repayments on the loan. The regional trial court and the Court of Appeals ruled that the petitioner must pay interest on the indebtedness at the rate of 12% per annum. The Supreme Court agreed. The Supreme Court reiterated its ruling in the 1994 case of Eastern Shipping, Inc. vs. Court of Appeals, 234 SCRA 78, 95-96 (1994). The holding can be summarized as follows: 1. Loans or forbearance of money, goods, or credits, as well as to judgments involving such loan or forbearance of money, goods, or credit (a) Parties agreed on interest payable If the parties agreed on the interest payable, the interest due is what has been stipulated upon by the parties. Pursuant to Article 1856 of the Civil Code, the agreed interest must have been expressly stipulated in writing. Under Article 2212 of the Civil Code, the interest due shall itself earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point. (b) Parties did not agree on interest payable In the absence of stipulation between the parties on the rate of interest payable, the rate of interest will be 12% per annum to be computed from default, i.e., from the judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. Obligations not involving loans or forbearance of money (or judgments related thereto) If the obligation breached does not consist in the payment of a sum of loaned money, the court, in its discretion, may impose interest on the amount of damages awarded at the rate of 6% per annum (see Civil Code, art. 2209). However, no interest can be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code), but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. Court judgment When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. Since the obligation in Tomimbang involves a loan and there is no stipulation in writing as to interest due, the Supreme Court ruled that the rate of interest shall be 12% per annum computed from the date of extrajudicial demand.

Legalese 2009 (Week 36)

September 11, 2009Hector M. de Leon Jr

Lexicon succession mode of acquisition by virtue of which property, rights and obligations, to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Civil Code, art. 774). Lexplore Art. 778. Succession may be: (1) (2) (3) Testamentary; Legal or intestate; or Mixed.

Lexpound Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. Legal or intestate succession is that which takes place by operation of law. Mixed succession is that effected partly by a valid will and partly by operation of law. Lexcogitate Article 1347 of the Civil Code provides: No contract may be entered into upon future inheritance except in cases expressly authorized by law. In what cases does the law allow contracts upon future inheritance? (see Comments and Cases on Succession, p. 33 [2003]).

August 2009 Philippine Supreme Court Decisions on Commercial Law, Tax Law and Labor Law
September 14, 2009Hector M. de Leon Jr

Here are selected August 2009 Philippine Supreme Court decisions on commercial law, tax law and labor law: Commercial Law Insurance; insurable interest. Insurable interest is one of the most basic and essential requirements in an insurance contract. In general, an insurable interest is that interest which a person is deemed to have in the subject matter insured, where he has a relation or connection with or concern in it, such that the person will derive pecuniary benefit or advantage from the preservation of the subject matter insured and will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against. The existence of an insurable interest gives a person the legal right to insure the subject matter of the policy of insurance. Section 10 of the Insurance Code indeed provides that every person has an insurable interest in his own life. Section 19 of the same code also states that an interest in the life or health of a person insured must exist when the insurance takes effect, but need not exist thereafter or when the loss occurs. Violeta R. Lalican vs. The Insular Life Assurance Company Limited, as represented by the President Vicente R. Avilon, G.R. No. 183526, August 25, 2009. Insurance; reinstatement. To reinstate a policy means to restore the same to premium-paying status after it has been permitted to lapse. Both the Policy Contract and the Application for Reinstatement provide for specific conditions for the reinstatement of a lapsed policy. In the instant case, Eulogios death rendered impossible full compliance with the conditions for reinstatement of Policy No. 9011992. True, Eulogio, before his death, managed to file his Application for Reinstatement and deposit the amount for payment of his overdue premiums and interests thereon with Malaluan; but Policy No. 9011992 could only be considered reinstated after the Application for Reinstatement had been processed and approved by Insular Life during Eulogios lifetime and good health. Eulogios death, just hours after filing his Application for Reinstatement and depositing his payment for overdue premiums and interests with Malaluan, does not constitute a special circumstance that can persuade this Court to already consider Policy No. 9011992 reinstated. Said circumstance cannot override the clear and express provisions of the Policy Contract and Application for Reinstatement, and operate to remove the prerogative of Insular Life thereunder to approve or disapprove the Application for Reinstatement. Even though the Court commiserates with Violeta, as the tragic and fateful turn

of events leaves her practically empty-handed, the Court cannot arbitrarily burden Insular Life with the payment of proceeds on a lapsed insurance policy. Justice and fairness must equally apply to all parties to a case. Courts are not permitted to make contracts for the parties. The function and duty of the courts consist simply in enforcing and carrying out the contracts actually made. Violeta R. Lalican vs. The Insular Life Assurance Company Limited, as represented by the President Vicente R. Avilon, G.R. No. 183526, August 25, 2009. Officers; personal liability. It is settled that in the absence of malice, bad faith, or specific provision of law, a director or an officer of a corporation cannot be made personally liable for corporate liabilities. Gustilo and Castro, as corporate officers of Lowe, have personalities which are distinct and separate from that of Lowes. Hence, in the absence of any evidence showing that they acted with malice or in bad faith in declaring Mutucs position redundant, Gustilo and Castro are not personally liable for the monetary awards to Mutuc.Lowe, Inc., et al. vs. Court of Appeals and Irma Mutuc, G.R. Nos. 164813 & G.R. No. 174590, August 14, 2009. Tax Law Stamp tax; time deposit. The UNISA the special savings account of Metrobank, granting a higher tax rate to depositors able to maintain the required minimum deposit balance for the specified holding period, and evidenced by a passbook is a certificate of deposit bearing interest, already subject to DST even under the then Section 180 of the NIRC. Hence, the assessment by the CIR against Metrobank for deficiency DST on the UNISA for 1999 was only proper. Metropolitan Bank and Trust Co. vs. Commissioner of Internal Revenue, G.R. No. 165697/G.R. No. 166481, August 4, 2009 Tax amnesty. A tax amnesty is a general pardon or the intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of violation of a tax law. It partakes of an absolute waiver by the government of its right to collect what is due it and to give tax evaders who wish to relent a chance to start with a clean slate. A tax amnesty, much like a tax exemption, is never favored or presumed in law. The grant of a tax amnesty, similar to a tax exemption, must be construed strictly against the taxpayer and liberally in favor of the taxing authority. Metropolitan Bank and Trust Co. vs. Commissioner of Internal Revenue, G.R. No. 165697/G.R. No. 166481, August 4, 2009. Taxation; double taxation. Double taxation means taxing the same property twice when it should be taxed only once; that is, taxing the same person twice by the same jurisdiction for the same thing. It is obnoxious when the taxpayer is taxed twice, when it should be but once. Otherwise described as direct duplicate taxation, the two taxes must be imposed on the same subject matter, for the same purpose, by the same taxing authority, within the same jurisdiction, during the same taxing period; and the taxes must be of the same kind or character. Using the aforementioned test, the Court finds that there is indeed double taxation if respondent is subjected to the taxes under both Sections 14 and 21 of Tax Ordinance No. 7794, since these are being imposed: (1) on the same subject matter the privilege of doing business in the City of Manila; (2) for the same purpose to make persons conducting business within the City of Manila contribute to city revenues; (3) by the same taxing authority petitioner City of Manila; (4) within the same taxing jurisdiction within the territorial jurisdiction of the City of Manila; (5) for the same taxing periods per calendar year; and (6) of the same kind or character a local business tax imposed on gross sales or receipts of the business. The City of Manila, Liberty M. Toledo in her capacity as the Treasurer of Manila, et al. vs. Coca-Cola Bottlers Philippines, Inc., G.R. No. 181845, August 4, 2009. Labor Law Benefits; backwages. The issue on the proper computation of Mutucs backwages has been rendered moot by our decision that Mutuc was validly dismissed. Backwages is a relief given to an illegally dismissed employee. Since Mutucs dismissal is for an authorized cause, she is not entitled to backwages. Lowe, Inc., et al. vs. Court of Appeals and Irma Mutuc, G.R. Nos. 164813 & G.R. No. 174590, August 14, 2009. Benefits; service charge. Since Dusit Hotel is explicitly mandated by the Article 96 of the Labor Code to pay its employees and management their respective shares in the service charges collected, the hotel cannot claim that payment thereof to its 82 employees constitute substantial compliance with the payment of ECOLA under WO No. 9. Undoubtedly, the hotel employees right to their shares in the service charges collected by Dusit Hotel is distinct and separate from their right to ECOLA; gratification by the hotel of one does not result in the satisfaction of the other. Philippine Hoteliers, Inc./Dusit Hotel Nikko-Manila vs. National Union of Workers in Hotel, Restaurant, and Allied Industries (NUWHARAIN-APL-IUF) Dusit Hotel Nikko Chapter, G.R. No. 181972, August 25, 2009. Dismissal; illegal strike. A perusal of the Labor Arbiters Decision, which was affirmed in toto by the NLRC, shows that on account of the staging of the illegal strike, individual respondents were all deemed to have lost their employment, without distinction as to their respective participation. Of the participants in the illegal strike, whether they knowingly participated in the illegal strike in the case of union officers or knowingly participated in the commission of violent acts during the illegal strike in the case of union members, the records do not indicate. While respondent Julius Vargas was identified to be a union officer, there is no indication if he knowingly participated in the illegal strike. The Court not being a trier of facts, the remand of the case to the NLRC is in order only for the purpose of determining the status in the Union of individual respondents and their respective liability, if any. A. Soriano Aviation vs. Employees Association of A. Soriano Aviation, et al., G.R. No. 166879, August 14, 2009. Dismissal; misconduct. In its 14 February 2000 decision, PNBs Administrative Adjudication Panel found Maralit guilty of serious misconduct, gross violation of bank rules and regulations, and conduct prejudicial to the best interest of the bank. Maralit violated bank policies which resulted in the return of unfunded checks amounting to P54,950,000. Accordingly, PNB dismissed Maralit from the service with forfeiture of her retirement benefits effective at the close of business hours on 31 December 1998. PNB may rightfully terminate Maralits services for a just cause, including serious misconduct. Serious misconduct is improper conduct, a transgression of some established and definite rule of action, a forbidden act, or a dereliction of duty. Having been dismissed for a just cause, Maralit is not entitled to her retirement benefits. Ester B. Maralit vs. Philippine National Bank, G.R. No. 163788, August 24, 2009. Dismissal; negligence. Gross negligence connotes want or absence of or failure to exercise even slight care or diligence, or the total absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. To warrant removal from service, the negligence should not merely be gross, but also habitual. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. In JGB and Associates, Inc. v. National Labor Relations Commission, the Court further declared that gross negligence connotes want of care in the performance of ones duties. Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances. Fraud and willful neglect of duties imply bad faith of the employee in failing to perform his job, to the detriment of the employer and the latters business.Chona Estacio and Leopoldo Manliclic vs. Pampanga I, Electric Cooperative, Inc. and Loliano E. Allas, G.R. No. 183196. August 19, 2009 Dismissal; negligence. Under Article 282 (b) of the Labor Code, negligence must be both gross and habitual to justify the dismissal of an employee. Gross negligence is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. In the present case, petitioner, as respondents Accounting Manager, failed to discharge her important duty of remitting SSS/PhilHealth contributions not once but quadruple times, resulting in respondents incurring of penalties totaling P18,580.41, not to mention the employees/members contributions being unupdated. Eden Llamas vs. Ocean Gateway Maritime and Management, Inc., G.R. No. 179293, August 14, 2009. Dismissal; redundancy. Redundancy exists when the service of an employee is in excess of what is reasonably demanded by the actual requirements of the business. A redundant position is one rendered superfluous by any number of factors, such as overhiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company or phasing out of a service activity formerly undertaken by the enterprise. For a valid implementation of a redundancy program, the employer must comply with the following requisites: (1) written notice served on both the employee and the DOLE at least one month prior to the intended date of termination; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; (3) good faith in abolishing the redundant position; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant. Lowe, Inc., et al. vs. Court of Appeals and Irma Mutuc, G.R. Nos. 164813 & G.R. No. 174590, August 14, 2009. Dismissal; redundancy. We agree with the Labor Arbiter that Lowe employed fair and reasonable criteria in declaring Mutucs position redundant. Mutuc, who was hired only on 23 June 2000, did not deny that she was the most junior of all the executives of Lowe. Mutuc also did not present contrary evidence to disprove that she was the least efficient and least competent among all the Creative Directors.

The determination of the continuing necessity of a particular officer or position in a business corporation is a management prerogative, and the courts will not interfere unless arbitrary or malicious action on the part of management is shown. It is also within the exclusive prerogative of management to determine the qualification and fitness of an employee for hiring and firing, promotion or reassignment. Indeed, an employer has no legal obligation to keep more employees than are necessary for the operation of its business. Lowe, Inc., et al. vs. Court of Appeals and Irma Mutuc, G.R. Nos. 164813 & G.R. No. 174590, August 14, 2009. Dismissal; resignation. In termination cases, it is incumbent upon the employer to prove either the non-existence or the validity of dismissal. Inasmuch as respondents alleged petitioners resignation as the cause of his separation from work, respondents had the burden to prove the same. The case of the employer must stand or fall on its own merits and not on the weakness of the employees defense. Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one who has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether, in fact, he intended to sever his employment. In this case, we find no overt act on the part of petitioner that he was ready to sever his employment ties. Baltazar L. Payno vs. Orizon Trading Corp./ Orata Trading and Flordeliza Legaspi, G.R. No. 175345, August 19, 2009. Dismissal; transfer. ATIs transfer of Bismark IVs base from Manila to Bataan was, contrary to Aguanzas assertions, a valid exercise of management prerogative. The transfer of employees has been traditionally among the acts identified as a management prerogative subject only to limitations found in law, collective bargaining agreement, and general principles of fair play and justice. Even as the law is solicitous of the welfare of employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. On the other hand, the transfer of an employee may constitute constructive dismissal when continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank and/or a diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. Aguanzas continued employment was not impossible, unreasonable or unlikely; neither was there a clear discrimination against him. Among the employees assigned to Bismark IV, it was only Aguanza who did not report for work in Bataan. Aguanzas assertion that he was not allowed to time in in Manila should be taken on its face: Aguanza reported for work in Manila, where he wanted to work, and not in Bataan, where he was supposed to work. There was no demotion in rank, as Aguanza would continue his work as Crane Operator. Furthermore, despite Aguanzas assertions, there was no diminution in pay. Gualberto Aguanza vs. Asian Terminal, Inc., et al., G.R. No. 163505, August 14, 2009. Jurisdiction; Secretary of Labor. In the case at bar, the Secretary of Labor correctly assumed jurisdiction over the case as it does not come under the exception clause in Art. 128(b) of the Labor Code. While petitioner Jethro appealed the inspection results and there is a need to examine evidentiary matters to resolve the issues raised, the payrolls presented by it were considered in the ordinary course of inspection. While the employment records of the employees could not be expected to be found in Yakults premises in Calamba, as Jethros offices are in Quezon City, the records show that Jethro was given ample opportunity to present its payrolls and other pertinent documents during the hearings and to rectify the violations noted during the ocular inspection. It, however, failed to do so, more particularly to submit competent proof that it was giving its security guards the wages and benefits mandated by law. Jethros failure to keep payrolls and daily time records in Yakults premises was not the only labor standard violation found to have been committed by it; it likewise failed to register as a service contractor with the DOLE, pursuant to Department Order No. 18-02 and, as earlier stated, to pay the wages and benefits in accordance with the rates prescribed by law. Jethro Intelligence & Security Corporation and Yakult, Inc. vs.. The Hon. Secretary of Labor and Employment, et al., G.R. No. 172537, August 14, 2009. Labor organization. Article 212(g) of the Labor Code defines a labor organization as any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. Upon compliance with all the documentary requirements, the Regional Office or Bureau shall issue in favor of the applicant labor organization a certificate indicating that it is included in the roster of legitimate labor organizations. Any applicant labor organization shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration. Sta. Lucia East Commercial Corporation vs. Hon. Secretary of Labor and Employment, et al., G.R. No. 162355, August 14, 2009. Labor organization; bargaining unit. A bargaining unit is a group of employees of a given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer, indicated to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. The fundamental factors in determining the appropriate collective bargaining unit are: (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status. Sta. Lucia East Commercial Corporation vs. Hon. Secretary of Labor and Employment, et al., G.R. No. 162355, August 14, 2009. Strike; illegal strike. It is hornbook principle that the exercise of the right of private sector employees to strike is not absolute (see Section 3 of Article XIII of the Constitution). Indeed, even if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal. Thus, the employment of violence, intimidation, restraint or coercion in carrying out concerted activities which are injurious to the right to property renders a strike illegal. And so is picketing or the obstruction to the free use of property or the comfortable enjoyment of life or property, when accompanied by intimidation, threats, violence, and coercion as to constitute nuisance. Here, the Union members repeated name-calling, harassment and threats of bodily harm directed against company officers and non-striking employees and, more significantly, the putting up of placards, banners and streamers with vulgar statements imputing criminal negligence to the company, which put to doubt reliability of its operations, come within the purview of illegal acts under Art. 264 of the Labor Code and jurisprudence. A. Soriano Aviation vs. Employees Association of A. Soriano Aviation, et al., G.R. No. 166879, August 14, 2009.

Altis vs. Expedition: Who Wins?

September 16, 2009Hector M. de Leon Jr

A Toyota Altis was traveling at a speed of five to ten kilometers per hour along Rajah Matanda Street and has just crossed the center lane of Katipunan Avenue when a Ford Expedition violently rammed against the cars right rear door and fender. With the force of the impact, the Altis turned 180 degrees towards the direction where it came from. A passenger of the Altis sustained injuries and was immediately brought to the hospital. The Altis owner demanded from the Expedition owner reimbursement for the expenses incurred in the repair of the car and the hospitalization of the car passenger in the aggregate amount of P103,989.60. The demand fell on deaf ears prompting the Altis owner to file a Complaint for Damages based on quasi-delict before the Metropolitan Trial Court of Metro Manila (MeTC), Quezon City. The Expedition owner denied liability for damages insisting that it was the negligence of the Altis driver which was the proximate cause of the accident. The Expedition owner maintained that the Altis crossed Katipunan Avenue from Rajah Matanda Street despite the concrete barriers placed thereon prohibiting vehicles to pass through the intersection. The Expedition owner further claimed that he was not in the vehicle when the mishap occurred. He asserted that he exercised the diligence of a good father of a family in the selection and supervision of his driver.

The MeTC ruled in favor of the Expedition owner. The Altis owner appealed to the Regional Trial Court (RTC), which affirmed the MeTC decision. The Altis owner appealed to the Court of Appeals (CA) which affirmed the view that the Altis driver was negligent in crossing Katipunan Avenue from Rajah Matanda Street. The CA noted that based on a MMDA certification, the crossing of vehicles at Katipunan Avenue from Rajah Matanda Street to Blue Ridge Subdivision,Quezon City has (sic) not allowed since January 2004 up to the present in view of the ongoing road construction at the area . . . However, the CA noted that at the time of the collision, the Expedition was moving at high speed in a busy area that was then the subject of an ongoing construction (the Katipunan Avenue-Boni Serrano Avenue underpass), then smashed into the rear door and fender of the passengers side of Altis, sending it spinning in a 180-degree turn. It therefore found the Expedition driver guilty of contributory negligence for driving the Expedition at high speed along a busy intersection. The Expedition owner filed a motion for reconsideration, which the CA denied. The Supreme Court reversed the CA and held that the Altis drivers act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery for any damages suffered by the Altis owner from the accident. According to the Supreme Court: Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz: Article 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. If the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latters negligence is imputed to his superior and will defeat the superiors action against the third person, assuming of course that the contributory negligence was the proximate cause of the injury of which complaint is made. Applying the foregoing principles of law to the instant case, Aquilinos act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery for any damages suffered by respondent from the accident. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. According to the Supreme Court, if the Altis driver heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident would not have happened. The Supreme Court ruled that it was manifest error for the CAs to have overlooked the principle embodied in Article 2179 of the Civil Code, that when the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. (Lambert S. Ramos vs. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009.)

Legalese 2009 (Week 37)

September 18, 2009Hector M. de Leon Jr

Lexicon warranty of an insured a statement or promise by the insured set forth in the policy or incorporated in it by proper reference, the falsity of which renders the policy voidable by the insurer. (see The Insurance Code of the Philippines Annotated, p. 215 [2006]). Lexplore Sec. 71. A statement in a policy of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. (Insurance Code) Lexpound The statement of the insured as to his age, or the purpose for which property insured is used (e.g., dwelling), is an express warranty, the falsity of which would avoid the policy. (see The Insurance Code of the Philippines Annotated, p. 221 [2006]). Lexcogitate Where the answers to an insurance application are qualified by words, in footnotes, that the above is near as correct as I remember, to the best of my knowledge and belief, or similar words, will the right to recover on the policy be defeated if the matter qualified turns out to be false? (see The Insurance Code of the Philippines Annotated, p. 222 [2006]).