I have been spending the last year reviewing for this year's Bar exam, but after the events like Mamasapano, the presence of an MILF camp in Iligan (not part of the ARMM!), and the attack on farmers in North Cotabato, I decided to do something about this whole foolishness.

Many of you haven't read the BBL and I've decided to share this link with you here for your benefit. Go ahead and download it.

I am from Mindanao, but I am not a muslim. Let me set the record straight for all of you. Although the majority of Filipino muslims are from Mindanao, the majority of people of Mindanao are  not muslim! There are more Visayan-speaking peoples, as well as the lumads (non-muslim indigenous people,) living here in Mindanao. If there is any group that can claim the original occupancy of Mindanao, it is the lumads. The lumads were here first; then the Visayans, who later converted to Christianity when the Spanish came; then the muslims in the 1300's. 

I am against the BBL. The BBL is unconstitutional.

I will center my argument against the BBL on the following grounds:

1.) Separation of church and state

2.) Non-delegation of powers

3.) Art. 11 of the BBL

1.) Separation of Church and State

The principle of separation of church and state is a basic democratic principle.  It doesn't matter what the religious establishment is (Christian, Muslim, etc.,) the religious sector is prohibited from meddling in purely secular affairs. By the same token, the state is prohibited from favoring any religion to the exclusion of others.

The BBL violates the separation of church and state by the creation of a Shariah legal system (Art. 10.) While the text says that Shariah law shall apply only to muslims, it must be remembered that Shariah is religious law. Sec. 4 of Art. 10  enumerates the sources of Shariah law:

a.) The Quran

b.) The Sunnah

c.) The Qiyas

d.) The Ijma

These are all religious texts. Even if the BBL states that the Shariah will only apply to muslims, the mere fact that such a provision is inserted into the legal system circumvents the principle of separation of church and state.

Under the principle of separation of church and state, the state cannot interfere in religious matters. The only exception is when religious sentiments are offended because offending religious sentiments is a violation of the universal freedom of belief; therefore the state can intervene in such a case.

But the BBL is different.  Religious law must be exercised within the confines of one's own religion and the state has no power to enforce it.

2.) Non-delegation of Powers

Another important principle of a mature democracy is the non-delegation of powers. This stems from another constitutional principle known as separation of powers. In separation of powers, the powers of the executive department, the legislature and the judiciary are clearly spelled out and neither department can encroach upon the other. This requires the creation of a check and balance system to prevent abuse.

Out of this separation of powers comes non-delegation of powers. Potestas delegata non delegari potest, a power once delegated cannot be delegated further; that is a universal legal principle. If, for instance, the power to legislate has been delegated to the legislature then the legislature cannot further delegate that same power to another body. The legislature may allow subordinate legislation (read: ordinances,) but never co-equal legislation.

The BBL runs against this by stating under sec. 2 of Art. 7 expressly that the Bangsamoro Parliament can enact laws. It even provides, under sec. 13 of Art. 12, for the enactment of a separate tax code! Art. 11 of the BBL also provides for the creation of a separate police force; we will take that up in the next paragraph.

3. Art. 11 of the BBL

Art. 11 of the BBL provides for the creation of a separate police force which, under sec. 2 (1,) is supposedly under the PNP. Under sec. 8 the Chief Minister of the Bangsamoro's powers over this separate police force are spelled out, including the powers of control, supervision and discipline. 

Under sec. 5, complaints against the Bangsamoro police may be appealed to the PNP, but this creates a problem. Since the Chief Minister exercises such tremendous powers over the Bangsamoro police, what is going to happen in case of a conflict between the Chief Minister and the PNP? Such conflicts will happen if the BBL is passed into law.

These principles that have been violated are known by lawyers the world over; they are an integral part of the Rule of Law. I reiterate: the BBL is unconstitutional. You can read more info on its flaws here.

Here's another analysis of the BBL; follow the link.

Bail: Intro

Hello everybody! Philcritic is back on blogspot. Clickbankphilippines has been giving me a headache for the past several months. It 's a good thing blogger has a procedure for removing your blog from a domain and putting it back on blogspot.

A bail is a form of security that allows a person in legal custody to be released. He is, however, required to appear in court under the terms specified in the bond.

Bail is a matter of right, the exception being if the crime is punishable by reclusion perpetua, life imprisonment or death -if the evidence is strong (and if it's weak, bail can be granted.) In case of the 3 exceptions, it becomes discretionary and may be denied. It can also be applied for after conviction in the MTC. If conviction is made in the RTC bail becomes a matter of discretion even if the crime isn't punishable by reclusion perpetua, death or life imprisonment.

Bail cannot be excessive and can be applied for even if the privilege of the writ of habeas corpus is suspended. If a person is arrested by virtue of a warrant, however, a petition for habeas corpus will not be applicable (Moncupa vs. Enrile, 141 SCRA 233) except in certain instances where the person arrested has a right to be protected from arbitrary and oppressive actions by the state (Serapio vs. Sandiganbayan, GR 148468-69, January 28, 2003.)

When a petition for bail is pending in court, a motion to quash an information can be filed. This is because the accused is allowed to apply for bail the moment he is arrested.

A bail can take any of the following forms:

1.) Cash

2.) Corporate Surety (usually 7% of the bail, renewable yearly)

3.) Property Bond (must be equal to the amount of bail)

4.) Recognizance (the bailed person is insolvent and his appearance in court will be guaranteed by another person in good standing -allowed only if the offense isn't serious)

Conditions

1.) A bail remains effective until judgment is made in the RTC, whether or not the RTC is in its original or appellate jurisdiction unless it's cancelled.

2.) The accused must appear in court under the following instances:

a.) Identification purposes

b.) Arraignment

c.) Promulgation of judgment (unless he's convicted for a light offense)

3.) If the accused is absent, he waives his right to be present at trial and he is tried in absentia. For trial in absentia, the following are the requisites:

a.) The accused was already arraigned

b.) He was duly notified of the trial

c.) He has no justification for his absence

4.) The bondsman will surrender the accused to the court for execution of judgment and they can arrest him. Take note of this article.

Even if the accused is absent, his lawyer must still be present at the proceedings so that his constitutional right to counsel isn't violated.

Price Act: Controls

Automatic Price Control

The president can freeze the prices of basic necessities in a given area at their prevailing prices in any of the following instances:

1.) State of calamity/disaster area

2.) State of emergency

3.) Suspension of the privilege of the writ of habeas corpus

4.) Martial law

5.) State of rebellion

6.) State of war

“Calamity” and “disaster” can be either natural or man-made.

If the prevailing price is unreasonable or excessive, the implementing agency in question can recommend the imposition of a ceiling price for the basic necessity different from the prevailing price. This power of price control has a maximum duration of 60 days.

Mandated Price Ceiling

The president, on the recommendation of the agency concerned or the Price Coordinating Council (which consists of the Secretary of the DTI as chair, the secretaries of Agriculture, Health, DENR DILG, DOJ and DOTC, Director General of the NEDA, 1 representative each from the consumers', agricultural producers', trading and manufacturers' sectors,) can impose a ceiling price on any basic necessity/prime commodity under any of the following conditions:

1.) Impendency, existence or effects of a calamity

2.) Threat, existence or effect of an emergency

3.) Prevalence/widespread acts of illegal price manipulation

4.) Impendency, existence or effect of any event causing artificial and unreasonable in the price of the basic necessity/prime commodity in question

5.) If the prevailing price of the basic necessity/prime commodity has risen to unreasonable levels

Determination of Price Ceilings

The following factors will be considered to determine a reasonable price ceiling:

1.) The average price of the last 3 months immediately before the proclamation of the price ceiling

2.) Supply availability in the market

3.) The cost to the producer, manufacturer, distributor or seller, including:

4.) The peso to foreign currency exchange rate to which the basic necessity/prime commodity or any of its components, ingredients or raw materials was paid for

5.) Changes in the amortization costs of machinery because of fluctuations in the foreign currency exchange rate with which the machinery was bought through credit facilities

6.) Changes in labor costs caused by changes in the minimum wage

7.) Changes in transportation costs

Government Interference in Patents

Here are 2 instances when the government, by virtue of its police and eminent domain powers, can interfere with the rights of the patent holder without his consent.

Exploitation

The government, or third persons it so authorizes, can exploit an invention without the patent holder's consent if the following requisites:

1.) It is required by public interest (national security, etc.)
2.) The patent holder's way of exploiting his invention is anti-competitive (this is determined by a judicial or administrative body)

The owner of the patent is, of course, entitled to just compensation.

Compulsory Licensing

A person who is capable of exploiting the invention in question can be granted the license by the Director of Legal Affairs to exploit it, even if against the patent holder's wish, if any of the following circumstances are present:

1.) National emergency or similar circumstances that are extremely urgent
2.) Public interest requires
3.) A judicial or administrative body has found the patent holder's exploitation of the invention to be anti-competitive (see exploitation)
4.) The invention is used publicly, but not commercially, and without a satisfactory reason
5.) The invention isn't worked in the Philippines on a commercial scale without satisfactory reason, even if it can be worked on such a scale

In all instances, the patent holder is entitled to just compensation.

Instances 1 to 4 can be raised any time after the patent is granted. 5, on the other hand, can't be invoked until 4 years after the patent holder applied for the patent, or 3 years after the patent was issued, whichever happens last. Also, if the invention wasn't worked in the Philippines but was successfully worked in another country, the government can't deprive the patent holder of his license.

Freedom of Speech 1

This is my 250th post!

With the enactment of RA 10175, I believe it is time we ought to look back at what the 1987 Constitution says about freedom of speech (Art. 3, Sec.4.)

"No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." -Art. 3, Sec. 4, 1987 Constitution.

Freedom of speech covers every form of expression, regardless of whether it is oral, written or recorded. It includes movies, media (like the internet) and symbolic speech. "Symbolic speech" includes displaying symbols of protest. Primary protection goes to speech on (a.) political, (b.) social or (c.) religious ideas. Commercial speech enjoys protection if (a.) it isn't misleading and (b.) doesn't propose illegal transactions.

The elements of freedom of expression are the following:

1.) Freedom from previous restraint/censorship

2.) Freedom from subsequent (read: later) punishment

Prior restraint means official government restrictions on the press and other forms of expression before there is actual publication or dissemination. It will not apply in the following cases:

1.) If the nation is at war

2.) Obscene publications

3.) To protect the security of community life from incitements to acts of violence or overthrow of orderly government by force

For government regulations/laws on freedom of speech to be justified, the following must be present:

1.) It is within the government's constitutional power

2.) It advances an important or substantial government interest

3.) That interest is not related to the suppression of freedom of expression

4.) The incidental restriction is not greater than what is needed to advance the interest in question

Everybody is entitled to his or her own opinion. The fair comment doctrine tells us that statements of opinion -not of fact- are not actionable (read: aren't punishable) even if the words are neither mild nor temperate! A person's true and honest opinion is important. 

The SC in the case of Borjal vs. CA (301 SCRA 1) explains that even though every discreditable imputation made in public is considered false, when made against a public person in his public capacity it isn't necessarily actionable unless it's a false allegation of fact or a comment based on false supposition.

With regard to public personalities (politicians, actors, etc.) opinions can be aired regarding their public actuations. With regard to opinions on their private lives, such opinions won't enjoy protection if the opinions not germane to the public personae of these public figures.

Children in Zones of Armed Conflict

Under RA 7610, children are declared "Zones of Peace" in areas where armed conflict takes place. The following policies are laid down by RA 7610 in order to attain that objective:

1.) Children shall not be the object of attack and are entitled to special respect. They are to be protected from threats, assaults, torture or other cruel, inhumane or degrading treatment.

2.) Children shall not be recruited into the Armed Forces of the Philippines or its civilian units (CAFGU, etc.) or other armed groups (NPA, MILF, etc.) They also can't be allowed to take part in the fighting or to be used as guides, spies or couriers.

3.) Basic social services like education, primary health and emergency relief shall not be hampered.

4.) The safety of those who provide the services in #3 as well as those involved in fact-finding missions must be ensured, regardless of whether they're government or non-government. The can't be subjected to undue harassment in the performance of their work.

5.) Public infrastructure like schools, hospitals and rural health units can't be used for military purposes (command posts, barracks, detachments, supply depots, etc.)

6.) All appropriate steps should be taken to facilitate the reunion of families separated by armed conflict.

In areas of armed conflict, children are to be given priority in evacuation. Existing community organizations (like NGOs) will be tapped to ensure the safety of children in evacuation operation. Evacuated children are to be accompanied by persons responsible for their safety and well-being.

Members of the same family are to be housed in the same premises and accommodated separately from other families. Facilities are to be provided to ensure a normal family life. Expectant mothers in places of temporary shelter are to be given additional food in proportion to their physiological needs. If possible, children are to be given opportunities for physical exercise, sports and outdoor games.

In case a child is arrested for reasons related to armed conflict, either as a combatant, spy, courier or guide, he is entitled to the following rights:

1.) Separate detention from adults except where families are accommodated for family units

2.) Immediate free legal assistance

3.) Immediate notice of the arrest to the parents or guardians of the child

4.) To be released on recognizance within 24 hours to the custody of the DSWD or any responsible member of the community as determined by the court

Preliminary Investigation: Procedure

We've already taken up the basis of preliminary investigation. Now, we're in the procedural part.

1.) The complaint must contain the respondent's (accused's) address and the following are to accompany it:

a.) Complainant's affidavit

b.) Witnesses' affidavits

c.) Other supporting documents to establish probable cause

There must be as many copies of the complaint as there are respondents and an additional 2 copies for the official file. The affidavits must be subscribed and and sworn to before any prosecutor of government official authorized to administer oath. In case they're unavailable, the subscription can be done before a notary public. The notary public has to examine the affiants personally and must be satisfied that they voluntarily executed the affidavits and understood them.

2.) After the complaint is filed, the investigating officer has 10 days to either dismiss the complaint or subpoena the respondent/s if he finds ground to proceed with the investigation. The subpoena is  to be accompanied by a copy of the complaint and its supporting affidavits and documents.

The respondent has the right to examine the evidence and he can copy it (at his expense, though.) If there's a lot of evidence, he can specify which ones he wants to copy. The specified evidence must be made available to him for copying. This is with regard to documentary evidence. Object evidence, on the other hand doesn't need to be furnished but the respondent is allowed to examine and take pictures of it.

3.) After the respondent receives the subpoena, he has 10 days to submit his counter-affidavit, as well as those of his witnesses and supporting documents he will need for his defense. The counter-affidavits must be certified and sworn to in the same way as in #1. The respondent can't file a motion to dismiss if he won't file a counter-affidavit.

If the respondent doesn't submit his counter-affidavits within the 10-day period in #3 (or if he can't be subpoenaed) the investigating officer must resolve the the complaint based on the evidence submitted by the complainant.

4.) If the counter-affidavits have been submitted, the investigating officer has 10 days to set a hearing if there are facts and issues that any party or witness must clarify. The parties can be present at the hearing but they can't examine and cross-examine each other. They can, however, submit their questions to the investigating officer, who will then bring them to the examined party. The hearing will be terminated within 5 days.

5.) Within 10 days after the investigation, the investigation officer has to determine whether or not there is sufficient ground to hold the respondent for trial. There is, therefore, a total of 40 days before the filing of the information. (the 5 days for hearing aren't included -that's the investigation itself.) If there is sufficient ground, the information will be filed.

The right to counsel during the preliminary investigation is necessary if there is a confession that is obtained. It's not admissible without counsel's assistance (People vs. Albano, 145 SCRA 555.)

The degree of proof isn't reasonable doubt. What is required is probable cause. First level court judges can't conduct preliminary investigations.

Custodial Investigation (RA 7438)

This is different from preliminary investigation but it serves the same purpose: to protect the rights of a detained person.

Custodial investigation involves any questioning by law enforcement people after a person is taken into custody or deprived of his freedom in any significant manner. That includes "inviting" a person to be investigated in connection of a crime of which he's suspect and without prejudice to the "inviting" officer for any violation of law. If a person is taken into custody and the interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative (People vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to arrest is sufficient as well as the intent of the detainee/arrested person to submit while thinking that submission is necessary. It will also apply if the "invitation" is given by the military and the designated interrogation site is a military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)

Once a person has been taken into police custody the rules of RA 7438 are to be applied. The rights of a person under custodial investigation are the following:

1.) To be assisted by counsel (and you can demand it!)

2.) To be informed by the arresting officer, in a language he can understand, of his right to remain silent and to counsel (and if he can't afford one, he'll be provided one)

3.) The custodial investigation report will be null and void if it hasn't been read and explained to him by counsel before he signed (or thumbmarked if he's illiterate) it

4.) Extrajudicial confessions must be put in writing and must be signed by him in the presence of counsel or, if there's a valid waiver, any one of his parents, older siblings, spouse, municipal mayor, municipal judge, district school supervisor or a priest or religious minister chosen by him

5.) The waiver of a person under custodial investigation or detained under Art. 125 of the Revised Penal Code (delay in delivering detained persons to the proper judicial authority) must be put in writing and signed by the detainee in the presence of counsel or it will be null and void

6.) To be visited by, or have conferences with, members of his immediate family, counsel, doctor, priest or religious minister or any national NGO duly accredited  by the CHR or international NGO duly accredited by the office of the President

The immediate family includes the following: spouse, parents, children, siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, guardians, wards and girlfriends and boyfriends.

If the assisting counsel is a private practitioner, he is entitled to the following amounts for his services in the custodial investigation:

1.) Php150 if the crime in question is a light felony

2.) Php250 if it's a grave or less grave felony

3.) Php350 if it's a capital offense

This will be paid by the city or municipal government where the custodial investigation is performed and payable by the province in question if the city/municipality can't pay -and the municipal/city treasurer must certify that there is no money first.

If counsel is absent, a custodial investigation can't proceed and the detainee must be treated in accordance with Art. 125 of the Revised Penal Code.

Penalties

If the arresting officer fails to inform the detainee or arrested person of his rights, he will be sentenced to 8 to 10 years' imprisonment and/or a fine of Php6,000. And if he was previously convicted for a similar offense, he gets perpetual absolute disqualification as well.

The same penalty will also apply if the detainee or arrested person can't afford counsel's services and the arresting officers/authorities don't provide counsel.

Obstructing counsel, immediate family members, doctors, priests or religious ministers from visiting or conferring with the detainee at any time of the day (or night in urgent cases, like when the detainee needs to have the sacrament of anointing the sick administered to him) will be penalized by 4 to 6 years' imprisonment and a fine of Php4,000.

A person under a normal audit investigation is not considered to be under custodial investigation since a COA audit examiner isn't considered an arresting officer under RA 7438 (Navallo vs. Sandiganbayan,  234 SCRA 175.)

Rule 112, Sec 1-2: Preliminary Investigation - Basis

A criminal investigation is a fact-finding inquiry conducted by the police and consists of gathering and assessing evidence and interviewing witnesses to find out it a complaint should be filed for the purpose of conducting a preliminary investigation.

A preliminary investigation is an executive function. Its purpose is to determine if there is probable cause to hold an offender for trial for the crime that was imputed to him (Dupasquier vs. CA, GR 112089, January 24, 2001.) It is done by the prosecutor. It is required when the penalty prescribed by law is at least 4 years, 2 months and 1 day, regardless of the fine. If the penalty is a fine only, it's not required if the fine isn't more than Php1,000. 

The rationale of a preliminary investigation is to protect the accused from the hassles of defending himself in a formal trial unless reasonable probability of his guilt came out in a fair summary proceeding done by a competent office (Tandoc vs. Resultan, 175 SCRA 37.) By nature, it is a personal right and may be waived expressly or impliedly (People vs. Lazo, 180 SCRA 274.)  If the right isn't waived, the lack of a preliminary investigation can violate the accused's right to due process (Villaflor vs. Gozon, 134744, January 16, 2001.) Note, however: if there is no preliminary investigation, the information filed will still be valid and won't be considered defective. Also, the jurisdiction of the court won't be affected and it won't be a ground for a motion to quash the information (People vs. Deang, GR 128045, August 24, 2000.)

Posting of bail won't constitute a waiver of the right to a preliminary investigation.

If the right is timely invoked, the court will suspend the proceedings and remand the case to the prosecutor for a preliminary investigation. This must be done before entering a plea or else the accused will be considered as having waived his right (Torralba vs. Sandiganbayan, 230 SCRA 33.)

If there is no preliminary investigation, the accused has the following remedies:

1.) Refuse to enter a plea when being arraigned and object further proceeding on that ground

2.) Insist on a preliminary investigation

3.) If refused a preliminary investigation, file certiorari (and may even file an administrative case against the judge for denying his request)

4.) Raise the lack of preliminary investigation as an error on appeal

5.) File prohibition

A preliminary examination, on the other hand, is a judicial function and its purpose is to determine probable cause to issue an arrest warrant. Only a judge can do this and it can be done ex parte. 

Purposes 

1.) Protect an innocent person from hasty, malicious and oppressive prosecution

2.) Keep the state from spending for an expensive and useless trial

3.) Protect an innocent person from open and public accusation of a crime, trouble, expense and anxiety of a public trial (Duterte vs. Sandiganbayan, GR 130191. April 27, 1998)

4.) Determine whether or not a crime was committed and if there is probable cause to believe that the accused is guilty and it doesn't jeopardize the people against whom it's taken (Raro vs. Sandiganbayan, GR 108431, July 14, 2000)

Probable Cause

The existence of facts and circumstances that excite belief in a reasonable mind (based on facts within the prosecutor's knowledge) that the person charged is guilty for the the crime committed.

The people who can conduct a preliminary investigation are the following:

1.) Provincial and city prosecutors (and their assistants)

2.) National or regional prosecutors of the DOJ

3.) The ombudsman or his deputy

4.) The COMELEC director, in election offenses

5.) Duly authorized officers of the PCGG

6.) The legal division of the BIR, in case of tax fraud under the NIRC

The accused's presence isn't a sine qua non condition for a valid preliminary investigation. What matters is that efforts to reach him were made and he was given the opportunity to refute the complainant's evidence. This rule is important because it serves as a way to prevent unscrupulous respondents from thwarting the prosecution by either hiding or using dilatory tactics.

RA 7080: The Plunder Law

Plunder is committed when a public officer amasses ill-gotten wealth of at least Php50 million by an act or series of overt (read: not secret) criminal acts that may constitute different offenses. It isn't necessary to prove each act distinctly. Simply proving that the acts show a pattern of accumulation is enough. The series of acts are considered a continuing crime. It may be committed by the public officer himself or in connivance with family members and relatives (whether by affinity or consanguinity,) business associates, subordinates or other persons. The crime must, however, be committed in relation to the office of the public officer or another set of laws will apply (Organo vs. Sandiganbayan, GR 136916, December 14, 1999.)

The penalty is reclusion perpetua for the offender and anyone who participated with him in an offense that led to the crime of plunder. It used to be reclusion perpetua to death until the death penalty was abolished in 2006. The court will also declare any and all ill-gotten wealth and their interests and other income and assets (including properties and shares of stock that came from the transactions in question) forfeited in favor of the state.

During the pendency of the case, the official will be suspended. If he's found guilty, he'll lose all retirement and gratuity benefits under any law. If acquitted, he'll be automatically reinstated and entitled to the salaries and other benefits he failed to receive during his suspension unless administrative proceeding have also been filed against him.

If the officer in question belongs to Salary Grade 27 or higher under RA 6758 (Compensation and Position Classification Act) then he will be tried in the Sandiganbayan. If he's grade 26 or lower, he'll be tried in the lower courts (Organo vs. Sandiganbayan.)

In Estrada vs. Sandiganbayan (GR 148560, November 19, 2001) the nature of plunder is that of malum in se (evil in itself.) Mitigating and aggravating circumstances therefore can be applied.

Ill-Gotten Wealth

These are assets, properties, business enterprises or material possessions of the errant public officer (as well as his co-accused outside government) that he acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by a combination or series of the following (or similar) means:

1.) Misappropriation, misuse, conversion or malversation of public funds of raids on the public treasury

2.) Directly or indirectly receiving commissions, gifts, shares, percentages, kickbacks or equities in connection with any government contract or project or by reason of the office/position of the officer in question

3.) Illegal/fraudulent conveyance or disposition of assets belonging to the national government or any of its subdivisions, agencies or instrumentalities (including government-owned/controlled corporations)

4.) Directly or indirectly receiving, obtaining or accepting any shares of stock, equity or any other form of interest or participation (including the promise of future employment in any business enterprise or undertaking)

5.) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing decrees and orders intended to benefit particular persons or special interests

6.) Taking undue advantage of official position, authority, relationship, influence or connection to unjustly enrich oneself at the expense of the Filipino people and the Republic of the Philippines

A "combination"  under the definition of ill-gotten wealth refers to at least 2 of any of the above categories. A "series" refers to 2 or more overt criminal acts within each category.

The plunder law's constitutionality has been questioned because of supposedly general terms or vague ones that lack definition. However, this claim has been debunked because there are parameters that it has set (like the Php50 million amount) that make it clear and don't violate the constitutional rights of the accused. If the acts of the public officer in question don't meet the definition of plunder and ill-gotten wealth, other laws like RA 3019, including its provisions on SALN will come into view. The non-government people also have the same law's non-government provisions in case they can't be charged under RA 7080.

Then, of course, there are other related laws. The crime of plunder has a prescriptive period of 20 years.

RA 9165: Notes in Interpretation

1.) Buy-bust Operation

Remember my articles on arrest quotas, and entrapment? There are no hard and fast rules for buy-bust operations. They are presumed to be regular operations unless the accused can prove that they weren't and that there was a frame-up (People vs Agustin, 215 SCRA 725.) Frame-up, also known as inducement, is easy to fabricate and must be disregarded unless the evidence is clear and convincing. A sale happens when the transaction is consummated and may be on payment or delivery (People vs Ponsica, 230 SCRA 87.) What matters is that the accused was caught in the act (People vs. Aspiras, 376 SCRA 546.)

Mere acting as a broker is already sufficient to commit the crime of selling drugs (People vs. Agustin.)

2.) "Plain View" Doctrine

In a lawful arrest, a search is always in order. The search, however, is limited only to the person of the accused and the premises under his immediate control. A seizure under the "plain view" doctrine must conform to the following rules (from People vs. Aspiras:)

1.) There is a valid intrusion based on a valid warrantless arrest (it's not just ordinary people who can do this) with the police legally present

2.) The evidence was inadvertently discovered by the policemen who had the right to be there

3.) The evidence must be immediately apparent

4.) "Plain view" justifies mere seizure without further search

3.) Elements of Illegal Sale

Taken from People vs. Evangelista, 534 SCRA 245 and People vs.Santiago, 539 SCRA 198:

a.) Identities of the buyer, seller, object (thing to be sold) and consideration (price)

b.) Delivery of the thing sold and payment of the price

There are 2 additional details from People vs. Pendatun, 434 SCRA 148:

a.) The accused sold and delivered the drug to another person

b.) He knew that he sold and delivered a dangerous drug

4.) Kinds of Possession

Possession doesn't only include actual possession. There's also what's known as constructive possession. Constructive possession happens when the drug is under the control of the accused or if he has the right to exercise dominion and control over the place where the drugs are. People vs. Tira (430 SCRA 134) gives us 2 sets of elements for actual possession: for illegal drugs and controlled precursors and essential chemicals/regulated drugs. Constructive possession can be exclusive as well as joint (People vs. Huang, 439 SCRA 350.)

Illegal drugs:

a.) Actual possession of an illegal drug

b.) The possession isn't authorized by law

c.) The accused freely and consciously possessed the drug

Controlled precursors and essential chemicals/regulated drugs (also found in People vs Castillo, 439 SCRA 601:)

a.) Accused is found in possession of a regulated drug

b.) He isn't authorized by law or duly-constituted authority (ex. he doesn't have a doctor's prescription)

c.) He knows that the drug is regulated

5.) Possession vs. Sale

Possession and sale are different crimes. When a person is arrested while selling drugs, the possession of the drugs he has are absorbed into the sale. Hence, the only crime committed is sale (People vs. Catan, 205 SCRA 235.) The exception is if the accused sold the drugs but has some more in his possession (People vs. Angeles (218 SCRA 352.) If that happens, he will be tried for  both possession and sale.

6.) Receipt of Payment

A basic rule in civil law is that there is already a sale when the seller agrees to sell and the buyer agrees to buy. This is also considered in RA 9165. There is already a sale when the buyer agrees to buy and the seller agrees to sell. Consequently, payment of the money for a buy-bust operation isn't necessary anymore (People vs Yang, 423 SCRA 82.) In fact, even if the "buyer" didn't have the money, there's already a sale if he agreed to buy (People vs. Macasa 229 SCRA 422.)

Other People Under RA 3019

Now that you know about the offenses of public officers under RA 3019, here are the provisions of the same law that target other offenders. The penalties that cover these offenses are the same as those of public officers.

Persons with family ties or close personal relations with any public official are prohibited from taking advantage of such ties or relationships by directly or indirectly asking for or receiving any gift or material/pecuniary advantage from people or entities who have business, transactions or contracts with the government wherein the official concerned is required to intervene. "Family ties" include the spouse as well as relatives up to the 3rd civil degree. "Close personal relation" includes close personal friendship and professional employment that gives rise to intimacy and assures free access to the official in question. This includes membership in social and fraternal organizations.

Relatives within the 3rd civil degree of the President, Vice-President, Senate President and House Speaker are not allowed to intervene directly or indirectly in any business, contract or transaction with the government. The exceptions are:

1.) If the transaction, etc. in question was already going on when the official in question assumed office

2.) If the official in question was already dealing with the government on the same line of business before he assumed office

3.) If the approval of application filed by the officer in question isn't discretionary but depends on requirements set down by law, rules and regulations

4.) If the act is lawfully performed in an official capacity or in the exercise of a profession (be careful of this part)

A member of Congress (meaning both the Senate and House of Representatives,) during his term in office, is not allowed to acquire or receive any personal pecuniary interest in any specific business enterprise that will indirectly or directly benefit from any law or resolution authored by him previously approved or adopted by Congress during said member's term. This extends to other public officers who recommended the initiation of such law or resolution in Congress and who later acquire or receive such interest during their incumbency. Furthermore all officers, whether members of Congress or not, so long as they have an interest in the business enterprise in question, are prohibited from retaining the interest in question if it continues for 30 days after its approval.

Collective Bargaining Subjects

The constitution allows labor the right to collective bargaining in order to protect workers' rights. The agency whose duty it is to bargain with the employer on the side of the workers is the labor union. The workers who can form labor unions are those who are employed in the following establishments:

1.) Commercial

2.) Industrial

3.) Agricultural

4.) Religious

5.) Charitable

6.) Medical

7.) Educational

It won't matter if establishments 4 to 7 are operating for profit or not.

The mandatory subjects for collective bargaining are the following:

1.) Wages and other types of compensation

2.) Work hours and work days, including night shifts

3.) Holidays and vacations

4.) Bonuses

5.) Pensions and retirement plans

6.) Seniority

7.) Transfers

8.) Lay-offs

9.) Employee workloads

10.) Work rules and regulations

11.) Rental of company houses

12.) Arrangements for union security

Strikes: Requirements and Limitations

A strike is a temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute. There are 2 kinds of strikes, based on their grounds: Economic and ULP. Economic strikes are declared to force wage or other concessions which the employer isn't required by law to grant, such as a deadlock in collective bargaining. If the CBA has a no-strike clause, economic strikes can't be resorted to. ULP strikes happen when there are ULPs.

The right to strike is a constitutional right. The Philippines is probably the only country in the world where the right to strike became constitutional, but this right must be exercised peacefully and in accordance with law. It is the most powerful weapon of labor, but it must be handled delicately because it can go out of control and can even be detrimental to the economy; the right to strike is not meant (and should never be resorted to) to destroy or oppress the employer (AIUP vs. NLRC, GR 120505, March 25, 1999.) The requirements for a valid strike must be properly complied with, or the strike will become illegal. Some labor unions have abused the right to strike in the following ways:

1.) To force employers to grant unreasonable demands

2.) To destroy an insignificant minority in the workforce

3.) Violating Art. 264 of the Labor Code (prohibited activities) by replacing picket lines of striking workers with barricades or other means, like coercion and intimidation, to prevent entry to and exit from the workplace (and making the right to strike a means to coerce instead of to persuade)

Requirements of a Valid Strike

1.) Valid and factual ground

2.) Notice of strike filed either by the bargaining agent at least 30 days before the intended date (in case of a deadlock in collective bargaining) or by the registered union in the affected bargaining unit at least 15 days before the intended date (in case of a ULP)

3.) Notice filed with the NCMB

4.) Notice filed at least 24 hours before taking a strike vote through secret ballot, informing the NCMB of the decision to vote on the strike as well as its time, date and place

5.) The vote requires the majority of the union members

6.) Strike vote report is submitted to the NCMB at least 7 days before the intended date of the strike

7.) The cooling-off period is to be observed (30 days for collective bargaining deadlock and 15 days for ULP) except in case of union-busting

8.) Observe the 7-day strike ban/waiting period after submission of the strike vote report to the NCMB

9.) If the CBA has a no-strike clause, ULPs can be a valid ground but collective bargaining can't

10.) Persons in the picket line can't violate Art. 264 (see above)

11.) No strike can be declared after the DOLE Secretary assumes jurisdiction over the dispute

If the strike is lawful, it enjoys the following protective measures:

1.) Not subject to a labor injunction or restraining order

2.) Strike-breakers are prohibited

3.) Protected as a worker's constitutional and legal right

4.) Mere participation of an employee in a lawful strike isn't a ground for dismissal, disciplinary action or termination or discrimination

Mandatory Requirements of a Strike:

1.) Strike notice (30 days for collective bargaining deadlock, 15 days for ULP)

2.) Majority vote by secret ballot

3.) Submission of the strike vote report to the NCMB at least 7 days before the strike (7-day strike ban)

Flow-through of a Strike

1.) Filing of the notice of strike

2.) Cooling-off period (see above)

3.) Must be based on either collective bargaining deadlock or ULP

4.) Before the strike is actually started, the strike vote must be held with the 24-hour prior notice to the NCMB

5.) The results of the strike vote should be reported to the NCMB at least 7 days before the date of strike, but subject to the cooling-off period

Limitations of a Strike

1.) Means and purpose must be lawful

2.) National interest disputes assumed by the DOLE Secretary or one certified by him to the NLRC for compulsory arbitration: strike is subjected to injunction or restraining order and/or return-to-work order from the Secretary or NLRC

3.) Limited to CBA no-strike clause, if there is any

4.) Requirements should be complied with or it will be illegal

5.) Government employees under civil service and GOCCs with legislative franchise are prohibited from going on strike

6.) Employees of public utility and public service companies taken over by the government can't go on strike

Tax: A Definition

Taxation is the state's inherent power to raise revenues to defray the government's necessary expenses by imposing financial burdens on persons and property. It doesn't need a constitutional provision.

Taxation is based on 2 principles: Necessity and reciprocity. The government can't exist or function without the necessary funding (necessity principle.) The government also has the duty to protect its citizens; the citizens, in turn, have to duty to support the government that protects them (Benefits-received/Reciprocity Principle.) Taxation also has 2 aspects: levy, which is the making of a law or ordinance creating a tax; and collection, which is the actual collecting of the tax itself. Collection is an administrative act, while levy is legislative. Collection is done by the following:

1.) BIR -for national taxes

2.) Bureau of Customs -customs duties

3.) Local Government Units -local and real property taxes

A sound tax system will have the following principles:

1.) Fiscal Adequacy

Sources of revenue must be sufficient to cover the government's expanding (or contracting) expenditures.

2.) Theoretical Justice

The tax burden should be proportional to the taxpayer's ability to pay (rarely the case; too many regressive taxes.)

3.) Administrative Feasibility

The tax must be clearly understood by the taxpayer and capable of efficient collection by government agents (my tax review teacher says many government agents don't know how to collect properly.)

Waiver of Rights

A right is a power or privilege given by one person and can be demanded of another as a rule. Rights may be waived except if the waiver is contrary to law, morals, good customs, public order, public policy or if the waiver prejudices against the legal right of a third person. The waiver can be intentional, voluntary or gleaned from the conduct of the person waiving the right.

For a right to be validly waived, the following must be present:

1.) The person waiving has the capacity to waive his rights

2.) The waiver must be clear but not necessarily express

3.) The person waiving must actually have the right he is renouncing

4.) It must comply with the formalities of a donation in certain instances

5.) The waiver must not be contrary to law, morals, good customs, public order or public policy

6.) Other people with rights recognized by law must not suffer prejudice because of the waiver (ex. the right of a creditor to collect can't be defeated by the debtor when he sells property that he mortgaged.)

There are also rights that can't be waived. They are the following:

1.) Natural rights (ex. right to life)

2.) Alleged rights which don't really exists (ex. future inheritance)

3.) Renunciations contrary to public policy

4.) If the waiver is prejudicial to the legal right of another person (ex. a debtor waiving his inheritance)

5.)

Treaties

The 1969 Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more instruments and whatever its particular designation."  International organizations can be made parties to treaties. Treaties are intended to create legal rights and obligations for the parties who enter into them. Alternate terms for "treaty" include "convention," "pact," "agreement," "protocol," accord," "general act," "final act" and "exchange of notes." An "executive agreement" is not a treaty but is equally binding as a treaty. If there is a dispute of whether the agreement is a treaty of executive agreement, the DFA and the Senate must agree and submit their findings to the president.

Treaties deal generally with basic political issues and need concurrence. They can restrict the sovereignty of a state. Executive agreements deal with details in enforcing national policies and temporary arrangements; they don't need senatorial concurrence. 

An exchange of notes is a record of a routine agreement similar to a private law contract. It's merely exchanging 2 documents where the accepting state repeats the text of the offering to record its acceptance. It's a technique used often because of speed and it avoids legislative approval.

If one state ratifies a treaty, it can't make the other state that signed it ratify it as well.

For a treaty to be valid, the following must be present:

1.) Treaty-making capacity

This is an attribute of sovereignty. Both states and international organizations have this capacity.

2.) Competence of the representative/body concluding the treaty

This power generally belongs to the head of state. In the Philippines, the president has this power, but the conclusion must be ratified by a 2/3vote of the Senate.

3.) Freely-given consent of the parties

If the consent wasn't free or if fraud or errors were committed, the treaty is voidable (valid until its validity is questioned.) If the representative of one state was corrupted in the negotiation by another negotiating state, the treaty is invalid. Unequal treaties imposed by force are void (doctrine of unequal treaties.) The subject matter of the treaty must be lawful. A treaty is illegal if violates an absolute rule in international law. Derogations of customary international law is not allowed (jus cogens.) Accordingly, treaties with provisions contrary to international law are invalid (ex. torture of prisoners.)

4.) Ratification under the constitutional processes of the participants

In the Philippines, a treaty requires a 2/3 vote of the whole Senate to complete the ratification process.

The steps in making a treaty are the following:

1.) Negotiation

The representatives bear documents of full powers (pleine pouvoirs) of their states to enter into treaties with the willingness to observe them. There are cases, however, when certain people (like heads of state, foreign ministers, etc.) enter into the negotiations. The negotiations are privileged and can't be published or it would affect the way the country deals with future negotiations (AKBAYAN vs. Aquino, GR 170516, July 16, 2008.)

2.) Signing

The order of naming the parties and plenipotentiaries is varied so each party is named and each plenipotentiary signs first in the document to be kept by it (principle of alternat.) Ex. in a treaty between the US and the Philippines, the Philippine chief negotiator signs the Philippine copy first while the American chief negotiator signs the american copy first.

3.) Ratification

The states approve and confirm the treaty, signifying their willingness to abide by it. In the Philippines, ratification is done by the president with a 2/3 concurring vote from the Senate. In case there is an existing treaty another state can become a party to it by accession; the new member is invited or permitted to join by any of the existing contracting parties. When a state signs a treaty but wants to modify it, it's called a reservation; the state that made the reservation is still a party to the treaty, provided that the reservation is compatible with the treaty's object and purpose.

4.) Entry into force

Every international treaty is to be registered with the UN. Enforcement of the terms is dependent on what the negotiating parties agreed on. If no agreement was made, a treaty enters into force when all the parties consent to it. There is already consent when there is an exchange of instruments, ratification, approval, accession or if the treaty provides so, upon deposit of the instruments with a named depositary and notification to the parties of the deposit.

Treaties can't impose obligations on non-parties (pacta tertiis nocent nec prosunt) except by accession or adhesion. Other states can be bound to a treaty by a "most favored nation" clause.

Treaties must be observed in good faith. The state, if necessary, must modify its laws accordingly to prevent an international embarrassment (pacta sunt servanda.) In the Philippines, however, if a treaty is contrary to the constitution it will be declared invalid. The obligations under a treaty are terminated when a fundamental or vital change happens that allows the state to withdraw from the treaty (rebus sic stantibus.) For withdrawal to be invoked, the following must be present:

1.) The change is substantial that it removes the treaty's foundation

2.) The change was unforeseeable when the treaty was concluded

3.) The change wasn't caused by the party who wants to withdraw

4.) Withdrawal must be invoked at a reasonable time

5.) The treaty's duration must be indefinite

6.) Withdrawal will not have retroactive effect

Treaties are to be interpreted in good faith and in the ordinary meaning. Later agreements, annexes, text, etc. are to be considered in its interpretation. Modification requires the consent of all the parties (but the treaty may sometimes allow modification.)

Treaties are terminated for the following reasons:

1.) Expiration or withdrawal of a party in accordance with the treaty.

2.) Extinction of one of the parties (in case of bipartite treaties) when the rights and obligations of the extinct state will not be inherited by its successor.

3.) Mutual agreement.

4.) Denunciation by a party (the right to give notice of withdrawal or termination is called the right of denunciation.)

5.) Supervening impossibility of performance.

6.) Loss of the subject matter.

7.) A later inconsistent treaty concluded by the parties.

8.) Material violation or breach.

9.) Rebus sic stantibus

10.) War between the parties, unless the treaty relates to the conduct of war.

11.) Severing of diplomatic relations if the relations are indispensable for the treaty's application.

12.) Jus cogens or if a new norm of international law comes out that revises or replaces the old norm or makes the existing treaty void.

Refugees and Asylum

Asylum is the power of a state to to admit an alien seeking refuge from persecution or prosecution into its territory and placing him under its protection. Though widely practiced, this is not a principle of international law.

There are 2 kinds of asylum: political and diplomatic. Territorial asylum exists if there is a treaty or there is established usage. It depends on the liberal attitude of the receiving state and is based on territorial supremacy. Diplomatic asylum exists also if there is an existing treaty or established usage. It is granted in very limited circumstances and very definite limitations or when the life or liberty of the person claiming asylum is under threat.

The Philippines does not grant diplomatic asylum except to the diplomatic corps and their families and representatives. It may, on humanitarian grounds, be granted to those in danger of mob violence and only for as long as that violence exists.

A refugee is a person outside his home country or a stateless person outside the country of his habitual residence because of persecution of his race, religion, nationality or political opinion and can't be protected by his home country either because of fear or actual harm or can't go back to the country he habitually resides it if he's a stateless person.

Refugee status consists of the following elements:

1.) He is outside his home country or, if stateless, outside the country where he habitually resides.

2.) Lacks national protection.

3.) Fears persecution.

Refugees are treated as stateless persons, whether de jure or de facto, and the host state is obliged to grant them temporary asylum. Host states can't expel  refugees or return them to their home country (non-refoulement.)

Extradition

This post must be taken together with citizenship and treatment of aliens. 

Extradition is the surrender of a person by one state to another where he faces prosecution or punishment (if he's already convicted.) This is not the same as deportation. Deportation is a unilateral act; made by the state on its own interests and in it, an undesirable alien is not necessarily sent back to his home state. Extradition is a bilateral act; the state where the wanted individual is to be tried/punished requests the state that has him in its custody.

Extradition is based on the existence of a treaty or on international comity. If there is no treaty the host state may or may not accept the wanted person.

Principles

1.) An extradition is based on consent, usually through a treaty or an act of goodwill. An extradited person can only be tried/punished for the violation he committed, the violation must be one of those agreed-upon extraditable crimes and the host state can object if the extradited person is treated in violation to the agreement (principle of specialty.) Note: offenses punishable by at least 1 year in both states are included among extraditable offenses (non-list types.)

2.) Any person, whether he is a national of the host state, the requesting state or another state, may be extradited.

3.) Political and religious offenders are not subject to extradition -generally. For such to happen, there must be at least 2 parties in the requesting state and host state that want to impose the government of their own preference on the other. The murder of a head of state or any member of his family is not considered a political offense; the same is true for genocide (attentat clause.)

4.) If there is no agreement, then the offense in question must have been committed within the territory of the requesting states or against its interests.

5.) The act in question must be punishable under the laws of both the host and requesting states.

Procedure

1.) Request is made by the requesting state, accompanied by the necessary paperwork, made through the diplomatic channels of the host state.

2.) The host state conducts a judicial investigation to determine if the crime in question is extraditable and if there is a prima facie case against the person in question under its own laws. If there is, a warrant of surrender will be issued and the person in question will be extradited to the requesting state. 

The right to bail applies to extradition proceedings. To grant bail, there must be clear and convincing evidence that there is no risk that the person to be deported won't escape and he will abide by the rules and orders of the court.

Abduction from the host country isn't allowed. But if the host state's nationals helped with the abduction then the host state can't demand the return of the person who is to be extradited.

Treatment of Aliens

As an attribute of sovereignty and right to existence, a state is not obliged to admit foreigners and can determine  the conditions and instances where aliens can be admitted.

A state can remove undesirable aliens in any of the following instances:

1.) Deportation/expulsion

Deportation happens when either when an alien has violated the terms and conditions of his stay, that his permission to stay has expired, his entry was illegal or that he constitutes a menace to the state. See Citizenship for further discussion.

2.) Reconduction

Reconduction is the forcible return of undesirable aliens to their home state. Vagabonds, destitute aliens, undocumented aliens, alien criminals and any other undesirables can be arrested and sent back without any formality. The home state is obliged to receive them.

Aliens who are admitted into another state must accept the institutions of the host state. They may, however, be granted certain rights and privileges (such as the right to own personal property, access to the courts) on the grounds of reciprocity, national treatment or most favored nation treatment.

Doctrine of State Responsibility

A state is obliged under international law to provide protection to the nationals of other states visiting its territory. The government of a foreign national can hold the host state liable for injuries if the treatment of the national constitutes an international delinquency, damage to the alien is an indirect injury to his home state or if the treatment is directly or indirectly imputable to the host state.

There is an international delinquency when the alien's treatment reeks of bad faith, outrage, willful neglect of duty or insufficiency of government action. This maltreatment should be sufficient to be noticed by the average person. Reasonable treatment according to ordinary means and notions accepted by modern civilization must be afforded to an alien (international standard of justice.) Execution without trial is considered as a violation of the international standard of justice. Equality of treatment will not apply if both nationals and aliens are treated equally and below the international standard of justice. In all instances, however, the courts must remain independent unless there is proof of extremely grave misconduct.

If a host state doesn't take measures to protect an alien or if the measures are insufficient and the host state fails to repair the injury, the injury can be directly or indirectly imputable to it even if the laws of the state conform to the international standard of justice.) This act (or omission) can either be caused by the officials of the host state or by private individuals in the host state. With regard to officials, if the official acts within his official capacity his act is considered an act of the state; if done without authority, it's considered the act of a private person. For a private person's acts or omissions to hold the host state liable, any of the following must happen:

1.) The state must give its actual or tacit approval either before of after the act. It can either ratify or approve it.

2.) There is a cover-up in the investigation.

3.) The host state is negligent in taking measures to prevent the injury.

4.) The host state prevents the injured alien from prosecuting a civil case against the offender.

The claimant has the burden of proof and must also follow the rule on exhaustion of remedies and can only dispense with this requirements if there are no available remedies, the courts of the home state are corrupt, there is no adequate machinery for the administration of justice or if the international delinquency comes from an act of state. An alien can, by stipulation, waive or restrict his right to appeal to his own state from any contract-based claim and limit himself to the legal remedies of the host state (Calvo Clause.) This waiver, however, will not deprive the alien's home country of the right to protect the alien's rights. In case no remedy is left, the alien can ask for protection from his home state. If the foreigner isn't a national of the home state anymore, he can't ask for protection. The UN, EC or other other international bodies can file a diplomatic claim on behalf of their officials.

Claims are to be enforced either through negotiation, good offices, arbitration or judicial settlement.  If the responsibility of the guilty state is established, it will be required to make restitution, satisfaction, compensation or all three.