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Saturday, October 30, 2010

Powers of the President


President Benigno Aquino III has the following powers;
1. Executive Power-  Power to enforce and administer laws.
2. Power of Appointment
3. Power of Removal
4. Power of Control- (Control- power of an officer to alter, modify, nullify or set aside what a subordinate has done in the performance of his duties.)
5. Military Powers- a. Commander-in-Chief
                              b. Suspension of the Privilege of Writ of Habeas Corpus  and Declaration of Martial law.
6. Pardoning Power- It is discretionary and may not be controlled by the legislature or reverse by the court, unless there is a constitutional violation.
7. Borrowing Power- The President may contract or guarantee foreign loans on behalf of the Republic.
8. Diplomatic Power- There will be no treaties or international agreements shall be valid and effective unless concurred in by the 2/3 of all members of the Senate.
9. Budgetary Power- Within 30 days from the opening of every regular session, the President shall submit to Congress a budget of expenditures and sources of financing including receipts from existing and proposed revenue measures.
10. Informing Power- The President shall address the Congress at the opening of the regular session , he can also appear before it anytime.
11. Residual Power- "Whatever is not judicial, whatever is not legislative, is residual power exercised by the President."
12. Other Powers.
Be vigilant..

Friday, October 29, 2010

BAIL

,What is bail?  Section 1, Rule 114 of the Revised Rules of Criminal Procedure defines bail, to wit:
“Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.”
Bail as a matter of right:
All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a)before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.
Bail;when discretionary:
Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.
Bail in capital offenses:
No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.
Bail, where filed:
Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.
Bail 2
With the arrest of Erap for the crime of plunder, the next logical move for his lawyers is to petition the Sandiganbayan for bail.  This is a result of the express provision in the Rules of Criminal Procedure that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.
At the hearing of Erap’s application for bail, it is the prosecution which has the burden of showing that evidence of guilt is strong. Moreover,  the evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.
We now move on to the forms of bail. There are four kinds of bail under the law, these are: corporate surety, property bond, cash deposit, or recognizance. We shall now discuss each form:
1. Corporate Surety: Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly
authorized by its board of directors.
2. Property Bond: A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.
3. Cash Deposit: The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.
4. Recognizance: Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.
New provision on bail in Revised Rules of Criminal Procedure:
The new Rules also provide that bail is not a bar to objections on illegal arrest, or lack of or irregular preliminary investigation. It states that an application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

Regalian doctrine

Regalian doctrine - All lands of the public domain belong to the State, which is the source of any asserted right to ownership of land. All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. All lands not otherwise clearly appearing to be privately-owned are presumed to belong to the State.

Political Law by (Carpio Morales, J.)

Political Law
MERCURY GROUP OF COMPANIES, INC. v. HOME DEVELOPMENT
MUTUAL FUND
541 SCRA 211 (2007), SECOND DIVISION, (Carpio Morales, J.)
The law of the case doctrine cannot be adhered to when the same will result in an unjust decision.
P.D. No. 1752, the ―Home Development Mutual Fund Law of 1980‖ created the Pag-IBIG Fund System. Under P.D. No. 1752, coverage of the Pag-IBIG Fund is mandatory for all employees covered by the SSS and the GSIS and their employers. The law provides, however, for a waiver or suspension from coverage or participation in the Fund. Upon the effectivity of the law in 1980 up to 1995, Mercury Drug and its subsidiaries were, on their application, annually granted waiver from coverage of the Fund because their Retirement or Provident Plan was superior to it.
In 1995, the Board of Trustees of Home Development Mutual Fund (HDMF), issued Amendment to the Rules and Regulations Implementing R.A. No. 7742. Under the Amendment and the Guidelines, an employer with a provident/retirement and housing plan superior to that provided under the Pag-IBIG Fund is entitled to execution/waiver from Fund coverage.
In 1996, HDMF had once again amended the Rules and Regulations Implementing P.D. No. 1752, as amended, this time limiting waiver from Fund coverage only to ―distressed employers‖. Mercury then filed a petition for certiorari and prohibition with the Regional Trial Court of Quezon City to declare null and void the 1996 amendment to the Rules and Regulations Implementing P.D. No. 1752, as amended. By Order, RTC dismissed Mercury‘s petition for certiorari on the ground that it failed to exhaust administrative remedies, and that HDMU‘s questioned amendment of the implementing rules was made in the exercise of its legislative/administrative, not judicial, function.
The Court of Appeals affirmed HDMF‘s denial of Mercury‘s request applying the law of the case doctrine.
ISSUE:
Whether or not the waiver of Fund coverage of Mercury should be granted
HELD:
In affirming HDMF‘s denial of Mercury‘s request for waiver from Fund coverage for the year 1996, the appellate court harped on the law of the case doctrine. Thus it held that Mercury‘s application anew for waiver/exemption from Fund coverage is anchored on the decision of the Supreme Court in the China Bank case which declared as null and void Section 1 of Rule VII of the Amendments to the RRI of R.A. No. 7742, and HDMF Circular No. 124-B prescribing the Revised Guidelines and Procedure for Filing Applications for Waiver or Suspension of Fund coverage under P.D. No. 1752, as amended by R.A. No. 7742. It is in this view that Mercury contends that HDMF should have considered its application for waiver/exemption from the coverage of the Fund. On the other hand, HDMF invoked the doctrine of the law of the case pursuant to the decision of the Supreme Court in G.R. No. 132416 in denying Mercury‘s application for waiver/exemption from the Fund coverage.
The doctrine of the law of the case does not apply to the present case vis a vis the decision of this Court in G.R. No. 132416. The present case is not a subsequent proceeding of the same case – G.R. No. 132416. This is an entirely new one which was commenced by Mercury‘s filing of an original petition for certiorari, prohibition, and mandamus before the Court of Appeals against HDMF.
Even assuming arguendo that the present proceeding may be considered a subsequent proceeding of G.R. No. 132416, the doctrine of the law of the case just the same does not apply because the said case was not resolved on the merits. The Order of this Court denying Mercury‘s petition for review in G.R. No. 132416 found no reversible error in the Order of the RTC dismissing Mercury‘s case primarily on a procedural ground – failure to exhaust administrative remedies.
At all events, the doctrine ―is merely a rule of procedure and does not go to the power of the court, and will not be adhered to where its application will result in an unjust decision.‖ To sustain HDMF‘s refusal to grant a waiver of Fund coverage to Mercury on the basis of amendments to implementing rules which had priorly been declared null and void by this Court would certainly be unjust.