FILIATION RIGHT TO INHERIT

  In Paulino v. Paulino (G.R. No. L-15091, December 28, 1961, 3 SCRA 730) the Supreme Court held that the acknowledgment of the putative father is essential and is the basis of an illegitimate child's right to inherit. If there is no allegation of acknowledgment, the action filed by the illegitimate child to be given a share in the estate of the putative father becomes one to compel recognition, which cannot be brought after the death of the putative father.   

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FILIATION ILLEGITIMATE CHILDREN

  The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child's acknowledgment. ( Aguilar vs. Siasat, GR No. 200169, January 28, 2015)

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Case Law: Rape

The absence of fresh laceration or of any sign of trauma in the victim's body does not necessarily negate
rape." (People vs. Pajaro, 265 SCRA 668; People vs. Galimba, 253 SCRA 722; People vs. Erardo,
277 SCRA 643)

Besides, a medical examination of the victim, as well as the
medical certificate, is only corroborative in character and is not an
indispensable element in rape. The unequivocal piece of evidence
that appellant had carnal knowledge of the victim is her credible and
consistent testimony." (People vs. Tamsi, 388 SCRA 604)

Also, rape does not necessarily mean
defloration. A freshly broken hymen is not an essential element of
rape. (People vs. Madridano, 227 SCRA 363; People vs. Llamo, 323 SCRA 791)

Indeed, it is not necessary, in order to have rape, that the
accused succeeds in having full penetration. The slightest touching or
introduction of the lips of the female organ or the labia of the
pudendum constitutes rape. When the accused tried to insert his
penis into his victim's vagina, that was all that was necessary to
commit consummated rape." (People vs. Clopino, 290 SCRA 432; People vs. Libeta, 381 SCRA 21; People vs. Velasquez,
377 SCRA 214.)

Full penetration of the genital organ is
not indispensable to sustain a conviction for rape." People vs. Manuel, 298 SeRA 184.

Probative Value of Ex Parte Affidavits

Basic is the rule that, taken ex parte, affidavits are considered
incomplete and often inaccurate." Ex-parte affidavits are usually
incomplete, as these are frequently prepared by administering officers
and cast in their language and understanding of what affiants have
said. (Marturillas vs. People, 487 SCRA 273 [2006])

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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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IT’S TIME FOR GANGWON-DO

IT'S TIME FOR GANGWON-DO! 

Social media influencers came together to promote winter tourism in Gangwon, South Korea's up-and-coming premier destination. 

A special summit of leaders of ASEAN and South Korea marked the 30th anniversary of ASEAN-Republic of Korea dialogue relations.  The event closed last November 27. Las year, the summit was previously held in Busan. 

The visit of the social media influencers to Gangwon-do was to promote the activities for winter sports in Gangwon Province, the Yongyang International Airport, and the famous tourist spots in Hanryu which is well known for the K-culture. 

The influencers, who have  more than 1 million followers and  visited Gangwon Province, include: Renee Dominique  (the musician who just released a single album with Jason Mraz),  Bautista Vanessa, Quijano Sergio, Luigi Pacheco and Bont Bryan Oropel from thePhilippines. 

The were also joined by singer and actress Jannine Weigel of Thailand. 

Osusu, Nabee TV and Umi TV of Vietnam also appeared in the winter tourist commercial video.

The Gangwon Province Winter Tourism commercial video will be produced and published on Arirang World Channel. 

It has 142 million receiving households in 103 countries.

The ASEAN social media influencers stayed in Gangwon province for 5 nights and 6 days from 26th November to  1st of December. 

They visited many locations including Nami Island in Chuncheon, known as the location of K – drama ,Yeongjin Beach, as well as the Daegwanryeong Ski Resort in Gangwon Province, which is called the Alps in Asia, Gangneung Curling Center and Wonju Soguem Mountain suspension bridge.

Cultural exchanges between ASEAN and Korea by the social media influencers were done in the snowplows in Gangwon Province.

This will be a great chance to promote Gangwon tourism to all the ASEAN countries.

NCIP; Jurisdiction; Ancestral Domain

As held in the main decision, the NCIP shall have jurisdiction over claims and disputes involving rights of ICCs/IPs only when they arise between or among parties belonging to the same ICC/IP group because of the qualifying provision under Section 66 of the IPRA that "no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws.

Ref: Galang et al., vs. Wallis  G.R. No. 223434, July 03, 2019

Revival of Judgment; Jurisdiction

An action for revival of judgment may be filed either "in the same court where said judgment was rendered or in the place where the plaintiff or defendant resides, or in any other place designated by the statutes which treat of the venue of actions in general."

Ref: 

" HEIRS OF NUMERIANO MIRANDA, SR., namely: CIRILA (deceased), CORNELIO, NUMERIANO, JR., ERLINDA, LOLITA, RUFINA, DANILO, ALEJANDRO, FELIMON, TERESITA, ELIZABETH and ANALIZA, all surnamed MIRANDA vs. PABLO R. MIRANDA" G.R. No. 179638 July 8, 2013

DAR; CLOA Title; Indefeasibility

"A Certificate of Land Ownership Award or CLOA is a document evidencing ownership of the land granted or awarded to the beneficiary by the DAR, and contains the restrictions and conditions provided for in the CARL and other applicable laws. 33 Section 24 of the CARL, as amended,34 reads: 

Sec. 24. Award to Beneficiaries. -The rights and responsibilities of the beneficiaries shall commence from their receipt of a duly registered emancipation patent or certificate of land ownership award and their actual physical possession of the awarded land. Such award shall be completed in not more than one hundred eighty (180) days from the date of registration of the title in the name of the Republic of the Philippines: Provided, That the emancipation patents, the certificates of land ownership award, and other titles issued under any agrarian reform program shall be indefeasible and imprescriptible after one (1) year from its registration with the Office of the Registry of Deeds, subject to the conditions, limitations and qualifications of this Act, the prope11y registration decree, and other pertinent laws. The emancipation patents or the certificates of land ownership award being titles brought under the operation of the torrens system, are conferred with the same indefeasibility and security afforded to all titles under the said system, as provided for by Presidential Decree No. 1529, as amended by Republic Act No. 6732. (Emphasis supplied.) xx xx 

Further, in Estribillo v. Department of Agrarian Reform,35 we held that: 

The rule in this jurisdiction, regarding public land patents and the character of the certificate of title that may be issued by virtue thereof, is that where land is granted by the government to a private individual, the corresponding patent therefor is recorded, and the certificate of title is issued to the grantee; thereafter, the land is automatically brought within the operation of the Land Registration Act, the title issued to the grantee becoming entitled to all the safeguards provided in Section 3 8 of the said Act. In other words, upon expiration of one year from its issuance, the certificate of title shall become irrevocable and indefeasible like a certificate issued in a registration proceeding. (Emphasis and italics omitted.) The EPs themselves, like the Certificates of Land Ownership Award (CLOAs) in Republic Act No. 6657 (the Comprehensive Agrarian Reform Law of 1988), are enrolled in the Torrens system of registration. The Property Registration Decree in fact devotes Chapter IX on the subject of EPs. 

Indeed, such EPs and CLOAs are, in themselves, entitled to be as indefeasible as certificates of title issued in registration proceedings.36 (Citation omitted.) 

We, however, note that the issue involving the issuance, recall, or cancellation ofCLOAs is lodged with the DAR,37 which has primary jurisdiction over the matter. "

Revival of Judgment; Equity Jurisdiction; Laches

"[T]he Court, in the exercise of its equity jurisdiction, relaxes the rules and decides to allow the action for the revival of judgment filed by petitioners. The Court believes that it is its bounden duty to exact justice in every way possible and exercise its soundest discretion to prevent a wrong. Although strict compliance with the rules of procedure is desired, liberal interpretation is warranted in cases where a strict enforcement of the rules will not serve the ends of justice; and that it is a better rule that courts, under the principle of equity, will not be guided or bound strictly by the statute of limitations or the doctrine of !aches when to do so, manifest wrong or injustice would result."

("Rubio vs. Albata," G.R. No. 203947. February 26, 2014)

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PROFILE THE EXAMINER

Did you know that our Constitution and some of our laws, such as the NIRC or Tax Code, are among the longest in the world? It is impossible to memorize all the provisions. Hence, you need to select topics that are more likely to be asked in the bar exam.

One of the filters in predicting the question is who is the bar examiner. The formulation of bar questions is a highly human process and thus, it is susceptible to cognitive biases. This will highly factor in determining which topics or provisions of law are likely to be asked in the bar exam.

It is the same in preparing for an exam in a law school. It is advisable to research on the professor administering the exam. It is equally important to know the "who" as well as the "what" as these two factors often interplay in predicting what questions will be asked.

For example, in  preparing for your exam for Criminal Law Review, you might want to take note of the topics he frequently emphasizes during your class. You might also want to determine if your professor is highly bar-oriented. These will help you further trim down the articles you need to memorize and study in depth or even trim down the materials you need to access. There's a significant difference in impact between studying  topics which are likely to be asked, and studying extensively to cover the entire coverage (or studying even those which will not be asked in the exam).

Think about this: two professors teach criminal law, and that is all that makes the difference.

Conscientious/Moral/Religious Objector

In "Burwell vs Hobby Lobby" (US, June 2014) and in "Imbong vs Ochoa" (April 2014), the Court ruled in favor of conscientious objector (religious or moral objector) because, among others, the government failed to discharge its burden ("compelling interest" test in the Philippine case; while the government did demonstrate sufficient compelling interest, it failed to show "meaningful difference" between non-profit religious (which are exempted under Affordable Care Act) and for-profit religious organization in the US case).

ACTUAL CONTROVERSY; RIPENESS

ACTUAL CONTROVERSY; RIPENESS

xxx

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of

xxx

J. Mendoza, "Imbong vs Ochoa" (2014)

See ACTUAL CONTROVERSY

ACTUAL CONTROVERSY

ACTUAL CONTROVERSY

xxx

"In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial determination. Considering that the RH Law and its implementing rules have already taken effect and that budgetary measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute."

xxx

J. Mendoza, "Imbong vs Ochoa" (2008)