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.

I'm Back!

Hello everybody! School is over and I've graduated from law school! Now I can write again! But first, I need a break. I'm so stressed, I need to relax before I resume my writing. I also have to prepare for review. See you all in a while!

The Tales of Neo-Byzantium

Hello everybody!

You're probably wondering why I haven't written any articles lately. It's because in this semester, I have 2 subjects handled by the same guy and he gives tests every meeting. Because of this, I have to double-time on schoolwork and what little time I have for myself will have to be spent on things other than law and my officework or I'll go crazy. 

Philcritic isn't dead. I just need to focus for a while. It will be back on track when the semester is over. In the meantime, you can take a look at my other blog, The Tales of Neo-Byzantium, where I write my fictional works, and is one of the things that's keeping me sane as of the moment. Enjoy!

Unrecognized Losses

After taking up the portion on exempt exchanges in this article, we now come here, where we will talk about exchanges and sales whose losses won't be recognized by the BIR and deductions will be prohibited. Whether or not you profit from these sales or exchanges, your losses will be disregarded by the BIR:

1.) Exchanges/sales between related parties (see below)

2.) Wash sales (unless made between dealers in securities)

3.) Exchanges in mergers and consolidations that are partly in kind and partly in cash (the cash portion is taxed)

4.) Illegal transactions

5.) Sales/exchanges generally not at an arm's length.

Related Parties

These just don't mean relatives. They also refer to members of a trust (grantor/trustor, fiduciary/trustee & beneficiary) as well as between corporations -if a single individual owns more than 50% of the outstanding stock of each corporation, if either is a personal holding company, whether local or foreign. Related parties can also refer to an individual and a corporation if he owns more than 50% of its outstanding stock.

"Not at arm's length" refers to a transaction where the consideration paid isn't commensurate with the thing's value because oc a certain relationship, such as between a parent company and its subsidiary.

A Holder in Due Course

Let's go back to negotiable instruments. Every holder of a negotiable instrument is prima facie considered to be a holder in due course and only real defenses are available against them. The following are the characteristics of a holder in due course:

1.) The instrument is taken as complete and regular on its face

2.) He became its holder before the instrument became overdue and without notice that it was previously dishonored (if there was a dishonor)

3.) The instrument was taken in good faith and for value

4.) When it was negotiated to him, he had not notice of an infirmity in the instrument or a defect in the title of the person who negotiated it.

In the absence of these characteristics, he becomes a holder for value and can raise neither real nor personal defenses.

Witness Protection Program: Penalties

The penalties for violating RA 6981 are the following:

1.) Violation of confidentiality of proceedings for application for witness protection: 1 to 6 years imprisonment and deprivation of the right to hold public office/employment for 5 years

2.) Witness giving false/evasive testimony: penalty for perjury

3. Witness fails/refuses to testify: contempt proceedings but the penalty is 1 month to 1 year imprisonment

4.) Harassment of witnesses: fine of up to Php3,000.00 and/or imprisonment of 6 months to 1 year (and if the harasser is a public official, perpetual disqualification from public office)

Harassment takes place when a witness is prevented, hindered or dissuaded from :

1.) Attending/testifying before a judicial, quasi-judicial or investigative body

2.) Reporting the commission/possible commission of a crime or a violation of conditions of parole, probation, or release pending judicial proceedings (a. k. a. Bail)

3.) Seeking the arrest of another person in connection with the crime in question

4.) Causing a criminal prosecution/proceeding for the revocation of parole or probation

Witness Protection Program: Background

Yes, the Philippines does have a witness protection program. It's RA 6981. The program is available to witnesses testifying not only in court but also at a quasi-judicial or investigating body.

Qualifications

1.) The testimony covers a grave felony under the Revised Penal Code or its equivalent under special laws
2.) The testimony's material points can be corroborated substantially
3.) The witness, or a family member within the 2nd degree (parents, siblings, children, grandchildren or grandparents) is subject to death threats, threat of injury or there is a possibility that he/his family member will be killed, harassed, forced, intimidated or bribed to prevent the witness from testifying
4.) The witness isn't part of law enforcement, even if he's testifying against other law enforcement officers (in this case, only immediate family members can receive protection)

If the witness will testify before a legislative panel "in aid of legislation," he will only  be admitted into witness protection if there is a serious need for it. It requires a recommendation from the panel which must be approved by the senate president or speaker of the house, depending on which panel is conducting the investigation.