Notes on Persona Non Grata (Local Government)

Notes on Persona Non Grata (Local Government)

1. What is a "persona non grata"?

The term "persona non grata" is a Latin phrase which means "an unwelcome person." Such practice of declaring a person as persona non grata is enshrined in the 1961 Vienna Convention on Diplomatic Relations. A diplomat who is no longer welcome to the government to which he is accredited is barred from remaining in the country and declared as persona non grata.[1]

2. Can the Sangguniang Panlalawigan declare a person as "persona non grata"?

Yes, a local legislative body may declare a person as a "persona non grata" through a resolution. Such practice has precedent. The City of Davao had previously declared Senator Antonio Trillanes as a "persona non grata" and the City of Manila had declared militant group "Panday Sining."[2] 

In Occidental Mindoro, the provincial government had declared the Communist Party of the Philippines – New People's Army (CPP-NPA) as persona non-grata through Resolution No. 159 S. 2020 dated May 05, 2020.

3. What is the legal effect of being declared "persona non grata"?

A resolution declaring a person as "persona non grata" is but a mere expression of sentiment or opinion of the local legislative body on a specific matter [3]

It may not have not a legal effect on its own, but it may be considered in decision-making processes in the government, most particularly where discretion on the part of authority is allowed. In the case of Eddie Digal, he was Project Manager for the National Irrigation Administration (NIA) who was declared as a persona non grata by government officials of Bohol, and was subsequently re-assigned by the NIA Administrator. The Civil Service Commission (CSC) sustained his reassignment, ciing "management prerogative" as he occupied third-level position (Career Executive Service (CES))[4]

4. Can a declaration as "persona non grata" be a basis for denial or limitation on the exercise of a legal right?

No. Respectfully submitting the opinion that, such a resolution cannot be the basis of a decision or government action in contravention of the law or against the lawful order of government authorities. In the case of Mayor Roberto A. Loquinte of Anahawan, Province of Southern Leyte, DILG Secretary Eduardo M. Ano that a resolution declaring the Mayor a persona non grata must not engender to prevent Mayor Loquinte from assuming his office and/or discharging his functions. If so, then such is "rephrensible." The DILG Secretary also advised the concerned local legislative body to act within the bounds of law and abide by duly-issued COMELEC Writ of Execution.[5]

[1] DILG Opinion No. 30 S. 2020 February 07, 2020

[2] Supra

[3] Supra

[4] RESOLUTION NO. 030284 dated March 05, 2003

[5] DILG Opinion No. 30 S. 2020 February 07, 2020

Oversight Function of Local Legislative Body

OVERSIGHT FUNCTION OF LOCAL LEGISLATIVE BODY

1. Can the Local Legislative Body compel the Local Chief Executive (LCE) to provide information and data necessary in relation to the former's ordinance making power?

No, unlike the national legislature, the local legislative body cannot compel through a subpoena, persons, including the Local Chief Executive (LCE) and members of the local Executive Department. It may issue an "invitation" only.*

2.  Does the LCE have a duty to provide information and data to the Local Legislative Body?

Yes. That duty is expressly provided under Sec. 455 of the Local Government Code.*

3.  If the LCE chooses not to perform this duty, what can the Local Legislative Body do? 

The Local Legislative Body may, among others,  file an administrative complaint for nonfeasance before the Office of the Ombudsman, pursuant to Section 16 of R.A. No. 6770. 

The body may also file a Petition for Mandamus before the appropriate court, to compel the LCE to provide the required data and information. The remedy is available "when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law." (Section 3, Rule 65 of the Rules of Court)#

*DILG OPINION NO. 25 S. 2020 dated January 31, 2020

ONLY THE COURT CAN DECLARE AN ORDINANCE VOID AB INITIO

ONLY THE COURT CAN DECLARE AN ORDINANCE VOID AB INITIO

A local legislative body passed an Appropriation Ordinance  (Supplemental Budget) with the provision, "That, in case of failure by the aforesaid officials and employees to comply with any of the foregoing conditions the approval of this ordinance shall be deemed as automatically withdrawn and of no effect ab initio."

Allegedly, the concerned Local Chief Executive (LCE) disbursed funds appropriated in the said ordinance, in such a manner that is violative of the provision of the pertinent Appropriation Ordinance. 

Under the foregoing premise, the same local legislative body, through a majority vote, approved the recommendation of the committee to declare the Appropriation Ordinance as void ab initio based on (1) the provision quoted above and (2) the alleged violation of the concerned LCE.

1. Can a local legislative body declare on its own an appropriation ordinance void ab initio?  

No, it cannot on its own solely determine whether its appropriation ordinance is void ab initio.  It is not one of the powers expressly granted to the local legislative body under the Local Government Code.

2. What is the proper action? 

The proper action is to file an action before the proper Regional Trial Court (RTC). This is consistent with the legal opinion of the Department of Interior and Local Government, to quote: "Be that as it may, we would like to inform you that the issued involving the validity and legality of an ordinance, the Department, in its previous legal opinions, has already opined that inasmuch as the ordinance has undergone the procedural process for its enactment under the Local Government Code, the same is considered valid unless otherwise declared by our courts of justice. Any issues or questions thereon as to the substantive validity and enforceability of an ordinance should be threshed out by filing a special civil action for declaratory relief before the proper court in accordance with Section 1 and Section 4, Rule 63 of the Revised Rules of Court."  (DILG Opinion No. 5S. 2018 dated January 25, 2018)

3. What is the effect of the declaration of the local legislative body that the appropriation ordinance is void ab initio?

It has no legal effect, as it has no power to declare an ordinance as void ab initio.  The appropriation ordinance is presumed valid unless other wise declared by the proper court upon filing of a petition as stated above. 

Any disbursement pursuant to the said appropriation ordinance also enjoy the presumption of regularity. The local legislative body, not being the proper court of justice, has no legal imprimatur to determine whether or not the disbursement was invalid or irregular.

4. What about the alleged violation of the local chief executive?

The local legislative body may conduct an inquiry in aid of legislation, and upon the observation of due process, issue a resolution recommending or requesting the filing of proper administrative charges and/or special audit by the Commission on Audit (COA).  

 In other words, the local chief executive may also be held liable for administrative offense. 

5. What about the liability of local legislative body members? 

If the local legislative body insists on giving no legal effect to the appropriation ordinance, as in its view, it is void ab initio, a tax payer or any constituent may file  administrative complaint for misconduct, "an offense implying a wrongful intent, an unlawful behavior in relation to the office, one that usually involves a transgression of some established and definite rule of action, more particularly unlawful behavior by the public officer." 

This may be filed before the Office of the President in the exercise of its power of general supervision over local government units or before the Office of the Ombudsman which has plenary powers over public officials.#

How Unfair Estate Partition Leads to Further Unfairness

THERE were six (6) brothers (Sons A, B, C, D, E and F) who will inherit the net estate of Sps. Juan Dela Cruz. 

For our example, we will stipulate that decedents Sps. Juan Dela Cruz left six (6) hectares of land. 

Three (3) hectares are in what we call commercial zone as these are along the national highway. The other three (3) hectares are located in inner or residential zone (in the vernacular, "looban"). 

When the estate was settled, the first three (3) sons received the one (1) hectare in the commercial zone, with each hectare valued at a conservative Twenty Million (Php20,000,000) Pesos. The remaining three (3) hectares were given to the last three (3) sons, with each hectare valued at a conservative Five Million (Php5,000,000) Pesos. Take note that each of them had the same portion in terms of area (at one (1) hectare each), but received, in terms of value, disproportionately with the first three sons receiving  four (4x) the last three (3) sons. 

When the estate settlement papers were submitted to the BIR for payment of taxes, the BIR assessed  an estate tax of Php4,500,000 (Php75,000,000 net estate x 6%). The first three (3) sons insisted that each of them pay their own taxes, so this estate tax was distributed equally to them (Php750,000 each). So a son who received Php5,000,000 (in terms of value) in inheritance and another who received  Php20,000,000 will have to pay the same share of estate tax (at Php750,000 each). A son receiving less  will be paying 15% of his inheritance in estate tax;  a son receiving more will only be paying 3.75% of his inheritance in estate tax. 

But the BIR not only assessed estate tax but also Donor's Tax, because in their view, by assigning particular slice of land, there was in fact a transfer without consideration (a waiver of a co-owner, as heirs are deemed under the law, in favor a co-owner). So, in BIR's view, a son receiving Php5,000,000 is technically waiving his rights in the amount of Php3,333,333.33  (Php20,000,000 divided by 6) to the inheritance worth  Php20,000,000 of another son,  so the son who received less was assessed further of Donor's Tax at the rate of 6% multiplied by the waived amount, or Php199,999.99 in taxes. On the other hand, the son who received Php20,000,000 is deemed by the BIR to waive his share in the Php5,000,000  inheritance of the former, and was assessed by the BIR of a Donor's Tax due of Php49,999. Repeat the same process for each son and their inheritance.

Son E, who received only Php5,000,000, will be assessed a Donor's Tax as broken down as:

Php199,999.99

Php199,999.99

Php199,999.99

Php49,999.99

Php49,999.99

TOTAL OF: Php699,995

In sum, Son E paid Php750,000 in estate tax and Php699,995 in Donor's Tax  or Php1,499,995 in taxes  or 28.99% of his inheritance. He is left with Php3,500,005.

Let's look at the Donor's Tax of Son A:

Php199,999.99

Php199,999.99

Php49,999.99

Php49,999.99

Php49,999.99

Son A had to pay Php549,995 in Donor's Tax. Combined with his share of the estate tax, that's Php1,299,995. That's 6.4% of his inheritance. He is left with Php18,770,005 in terms of value.

xxx

So what we have here is a person receiving more paying less in terms of real amount and in terms of percentage of the amount received, with those receiving less paying more in terms of real amount and in terms of percentage of the amount received.  

It would have been more equal if the net estate is divided in terms of value with each son receiving Php12,500,000 in terms of value.

The funny thing is Sons A, B, and C thinks this is "just" and derogate Son D, E, and F. 

"People derogate victims in this way to avoid the cognitive dissonance that comes from trying to understand how individuals can suffer injustice in a just world." (Harvard Business Review)

Weave Pattern; Trade Mark

https://www.theiplawblog.com/2013/10/articles/copyright-law/weaving-a-trademark/  

Often times, the aesthetically functional aspect of the product is the primary reason for its commercial success and it would not be fair to allow a company or person a monopoly over that feature. xxx Bottega Veneta argued that even if their weave design was merely ornamental, it had acquired distinctiveness as a mark which would overturn a finding of ornamentation. A mark acquires distinctiveness if it is used and promoted extensively, to the point where consumers now directly associate the mark with the applicant as the source of those goods. Acceptable evidence of distinctiveness can include (a) advertising and promotional materials that specifically show or promote the applied-for mark in use as a trademark and source-identifier; (b) dollar figures for advertising devoted to such promotion; (c) dealer and consumer statements indicating recognition of the applied-for mark as a trademark; or (d) other evidence that shows consumer recognition of the applied-for mark as a trademark for applicant's goods. 

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Probate of Will; Substantial Compliance; Number of Pages

Mere reading and observation of the will, without resorting to other extrinsic evidence, yields the conclusion that there are actually five (5) pages even if the said information was not provided in the attestation clause. In any case, the CA declared that there was substantial compliance with the directives of Article 805 of the Civil Code.

When the number of pages was provided in the acknowledgement portion instead of the attestation clause, "[t]he spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its  purpose and which, when taken into account, may only defeat the testator's will."

In the matter of the petition for the probate of the will of Consuelo Santiago Garcia Vs. Natividad Garcia Santos

G.R. No. 204793. June 8, 2020

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Probate of Will; Testacy Over Intestacy

It is settled that "the law favors testacy over intestacy" and hence, "the probate of the will cannot be dispensed with Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory." In a similar way, "testaye proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose."

In the matter of the petition for the probate of the will of Consuelo Santiago Garcia Vs. Natividad Garcia Santos G.R. No. 204793. June 8, 2020

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