Pregnancy

I can still remember an advertisement in the local radio advocating woman’s right that the a woman will be discharged from her teaching position on account of her being pregnant, the principal saying that it will ruin the reputation of the school because a woman is pregnant while she is single.

Labor Code provides that “Article 137. Prohibited Acts. – It shall be unlawful for any employer:

1. To deny any woman employee the benefits provided for in the Chapter or to discharge any woman employed by him for the purposes of preventing her from enjoying any of the benefits provided under this code. 

2. To discharge such woman on account of her pregnancy or while on leave or in confinement due to her pregnancy. 

3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.” 

Also Magna Carta for Women provides laws prohibiting discrimination against women.

Rape

The Anti-Rape Law of 1997 (RA 8353)

Elements: Rape is committed:

1. By a man who have carnal knowledge of a woman under any of the following circumstances:        
a. through force, threat or intimidation        
b. when the offended party is deprived of reason or otherwise unconscious        
c. by means of fraudulent machination or grave abuse of authority        
d. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in par 1 hereof,    shall commit an act of sexual assault by inserting:        
a. his penis into another person’s mouth or anal orifice, or        
b. any instrument or object, into the genital or anal orifice of another person.

        In 2001, Victor Pearson an American veteran was arrested for 87 counts of rape in Bacolod City, Negros Occidental. Allegedly he raped 8 women including minors who were at the age of 13-16 at that time.  He is a decorated Vietnam War veteran who has settled in the Philippines. He is said to have converted to Islam in 1980 and married 6 times, and was divorced twice. He served his sentence in Bacolod Provincial Jail before he was transferred to National Penitentiary to serve his remaining sentence of 80 years imprisonment because the Supreme Court upheld the lower court’s decision of convicting him on two counts of rape. Few of these women cling on him because of support. Some of them even said that it is good that they married an American because he is responsible. 

      His story is recently featured in a documentary named “Kano: an American and his harem” made by Coreen Jimenez after studying his story for an investigative magazine. This documentary won several awards including IDFA or International Documentary Film festival Amsterdam for first appearance.

Kidnap victim: Lao

Kenn Klefford Lao –(Jolo, Sulu) is a 21 years old Commerce student of Notre Dame of Jolo College and a son of a prominent physician in the town of Jolo. Two months before he was kidnapped by some people in the area. They said that the abductors are members of the notorious Abu Sayyaf Group or (ASG), but there is no link yet as to the identity of the abductors. 

During the kidnapping, he said he was going to meet his textmate, but few hours past and he was nowhere to be found. The driver said that he searched for the boy in the area but wasn’t able to see him. In the evening a mysterious caller said that he had the boy and asked for a ransom for the boy to be released.

At 8:45 pm on Wednesday, the boy was rescued from his abductors near the boundary of Indanan and Patikul in Sulu after two months in captivity. PNP chief said that they went on a mission at 7:30 pm upon receiving the report of a concerned citizen.

Good thing that the boy was rescued, after multiple cases of kidnapping in the town, people are afraid even to step in to the town of Jolo. The connotation is that many Abu Sayyaf members in the town and once there, one may be kidnapped.

I grew up in Jolo, it was when I am in college that I went to a near by city to study. I can still remember Jolo, many crimes were not solved. People are afraid, even the policemen are even afraid to catch criminals because of the possibility of retaliation to their own families. What more if you are a witness, you will just make your life short if you will talk.

I am glad that this town is improving. Hope their will be more people who can the change the image of this town. I salute those policemen who rescued the kidnap victim. You all did a great job.  

Amnesty vs Pardon

Amnesty- is an act of grace concurred in by the Legislature, usually extended to classes of persons who committed political offences which puts into oblivion the offense itself.

Pardon – act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.

Amnesty covers all political offenses, granted only to classes of persons, a public act to which court may take judicial notice, it looks backward and puts into oblivion the offense itself and may be granted even before trial while, pardon covers an infraction of peace/common crimes, granted only to individuals, does not require concurrence of Congress, private act which must be pleaded and prove, looks forward and relieves the pardonee of the consequences of the offense, and can be granted only after conviction.

OFW (Overseas Filipino Workers)

OFW (Overseas Filipino Workers)


Don’t you know that OFW arrival in the Philippines is 1500 per day during ordinary day and 3000 during the Christmas season?

It’s nice to know that the OFWs are the today’s heroes because of the remittance they send every month for their families in the Philippines.

According to Labor Code of the Philippines,
“Article 22. Mandatory Remittance of Foreign Exchange Earnings. It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor and Employment.”

Requirements:            
All overseas Filipino workers are required to remit a portion of their exchange earnings ranging from 50% to 80% of the basic salary, depending on the worker’s kind of job, to their families/ beneficiaries. (POEA Rules Book)

Seamen of mariners – 80% 
Workers for Filipino contractors and construction companies – 70%
Professionals whose employment contract provide for lodging facilities – 70 %
Professionals without board and lodging – 50%
Domestic and other service workers – 50%

What is 13th month pay?

It is the time of the year when people receive benefits for the Christmas season. 13th month pay is one of them.

In accordance with Presidential Decree Number 851 (The 13th Month Pay Law), employers are required to pay all their employees a 13th month pay equivalent to 1/12 of his basic salary not later than 24 of December every year.

This pay is payable to the employee even if the employee retired from work before the end of the year, by computing its pro-rata equivalent to the months the employee worked in a company.

The Decree shall not be applicable to:
(a) Distressed employers, such as           
     (1) Those which are currently incurring substantial losses or           
     (2) in the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than forty (40%) percent of their normal income for the last two (2) years, subject to the provision of Section 7 of this issuance; 
  
(b) The Government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government; 
  
(c) Employers already paying their employees 13-month pay or more in a calendar year or its equivalent at the time of this issuance; 
  
(d) Employers of household helpers and persons in the personal service of another in relation to such workers; and 
  
(e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.

Classification of Banks:

 , 

1. Universal Banks – Primarily governed by the General Banking Law, can exercise the owners of an investment house and invest in non-allied enterprises and have the highest capilization requirement.

2. Commercial banks – Ordinary banks governed by the GBL which have a lower capitalization requirement the universal banks and cannot exercise the powers of an investment house and invest in non-allied enterprises.

3. Thrift banks- These are a.) Savings and mortgage banks; b.) Stock savings and loan associations; c.) Private development banks, which are primarily governed by the Thrift Banks Act (RA 7906).

4. Rural banks- mandated to make needed credit available and readily accessible on reasonable terms and which are primarily governed by the Rural Banks Act of 1992 (RA 7363)

5. Cooperative Banks- Those banks organized whose majority shares are owned and controlled by cooperatives primarily to provide financial and credit services to cooperative rural banks. They are governed primarily by the cooperative code (RA 6935).

6. Islamic banks- Banks whose business dealings and activities are subject to the basic principles and rulings of Islamic Sharia, such as the Al amanah Islamic Investment Bank of the Philipippnes which was created by RA 6848.

7. Other classification of banks as determined by the Monetary Board of the Banko Sentral ng Pilipinas. 

Movies with legal theme that you should watch.

Sit back and relax. Enjoy these movies.

01.  A Civil Action- played by John Travolta, here he is a greedy lawyer whose qualification in accepting a case is only if he can get money out of the defendants. In the end, he learned his lesson. 

02.  Exorcism of Emily Rose – A true story of Emily Rose who undergone exorcism and later the judge convicted the priest for his negligence in the process of exorcism that caused Emily’s death.

03.  To kill a mocking bird – A black and white movie about the attorney who helped a black man who was accused of raping a white girl.

04.  I am Sam – Played by Sean Penn, an excellent movie involving the issue of custody of a child. Whether it will be given to foster parents or to her father who has a mental capacity of a 7 years old.

05.  The Client- written by John Grisham, this is a story of a boy who witnessed the murder of a man.

06.  Runaway Jury- An excellent movie about a member of a jury in a case who induced the plaintiff’s party and defendant’s party to win their case by paying him.


if you know movies with legal theme post a comment. i'll be glad to add your favourite movies to this list.

Tax Evasion vs. Tax Avoidance

, 

Tax Evasion is the use by the taxpayer of illegal or fraudulent means to defeat or reduce the payment of a tax. It is punishable by law.
Examples: Deliberate failure to report taxable income or property; deliberate reduction of income that has been received.

Tax Avoidance is the use by the taxpayer of legally permissible means or methods in order to avoid or reduce tax liability. It is not punishable by law.
Examples: Situations where a person refrains from engaging in some activity or enjoying some privilege in order to avoid the incidental taxation or to lower his tax bracket for a taxable year to avoid the higher rate of tax.

Tax evasion should be applied to the escape from taxation accomplished by breaking the letter of the law for example deliberate omission to report a taxable item. Tax avoidance on the other hand, covers escape, accomplished by legal means which may be contrary to the intent of the sponsors of the tax law but nevertheless do  not violate the letter of the law.

Source: Textbook on Agrarian Reform and Taxation by Hector de Leon
            Fundamentals of Taxation

Obligation and contract important terms Part 1

Obligation – a juridical necessity to give, to do, or not to do.                   
A juridical relation whereby a person (creditor) mat demand from another (debtor) the observance of a determinate conduct, and in case of breach may obtain satisfying from the assets of the latter.

Quasi-contracts- Those juridical relations arising from lawful, voluntary and unilateral acts, by virtue of which the parties become bound to each other based on the principle that no one shall be unjustly enriched or benefited at the expense of another.

Negotiorum gestio – arises whenever a person voluntarily takes charge of the agency or management of the business or property of another without any power or authority from the latter.

Solutio Indebiti – arise when a person unduly delivers a thing through mistake to another who has no right to demand it.

Quasi –delicts – An act or omission by a person (torteasor) which causes damage to another giving rise to an obligation to pay for the damage doner, there being fault or negligence but there is no pre-existing contractual relation between the parties (art 2176).

Negligence – failure to observe for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

Determinate or specific – object is particularly designated or physically segregated from all other of the same class.

Generic – object is designated merely by its class or genus.
Limited generic thing – when the generic objects are confined to a particular class, e.g. an obligation to deliver one of my cars,

Jus ad rem – a right enforceable only against a definite person or group of persons.

Jus in re – a right enforceable against the whole world.

Default or Delay – Non- fulfillment of the obligation with respect to time.

Mora solviendi- delay of the debtor to perform his obligation.

Mora accipiendi- delay of the creditor to accept the delivery of the thing which is the object of the obligation.

Fraud – Deliberate and intentional evasion of the fulfillment of an obligation.          Implies some kind of malice or dishonesty and it cannot cover cases of mistake and errors in judgment made is good faith.Diligence of Good Father of a Family – reasonable diligence which an ordinary prudent person would have done under the same circumstances.

Fortuitous event – an event which could not be foreseen or which though foreseen was inevitable.

Accion subrogatoria – to be subrogatred to all the rights and action of the debtor save those which are inherent in his person.

Accion paulina – impugn all the acts which the debtor may have done to defraud them.

Pure obligation – One whose effectivity is subrogated to the fulfillment or non-fulfillment of a condition or upon the expiration of a condition or upon the expiration of a term or period and is demandable at once.

Conditional obligation – one whose effectivity is subrogated to the fulfillment or non–fulfillment of a future and uncertain fact or event. 

Important Terms in Persons.

Lex Nationalii- Citizenship is the basis for determining the personal law applicable.

Lex Rei Sitae- Law of the place where the property is situated is the basis for determining law applicable.

Lex Loci Celebrationis- Law of the place where the contract was executed is the basis for determining law applicable.

Prejudicial Question- If both criminal and civil cases are filed in court, the criminal case takes precedence.

Residence- Used to indicate a place of abode, whether permanent or temporary.

Domicile- denotes a fixed permanent residence, which when absent, one has the intention of returning.

Marriage- A special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of conjugal and family life. its nature, consequences, and incidents are fixed by law and cannot be the subject of stipulation.

Bigamous Marriages- A marriage contracted by any person during the subsistence of a previous valid marriage shall be null and void. (Gomez vs. Lipana)

Marriage settlement- It is a contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence.

Family- Basic social institution which public policy cherishes and protect hence, no suit between members of the family shall prosper unless the compromises between the parties have failed.

Family Home- is exempt from execution, forced sale or attachment.

Legitimate Children- Only those who are conceived or born during a valid marriage.

Illegitimate Children- Those conceived and born outside a valid marriage are illegitimate.





Bar examination questions and answers on the Civil code of the Philippine Islands (1902-1924) designed especially for the use of law students in their ... and preparation for admission to the bar,
Civil code of the Philippines annotated
Civil Code of the Philippines annotated: Y Edgardo L. Paras

Maguindanao Massacre

The Maguindanao massacre, also known as the Ampatuan massacre (after the townwhere the mass graves were found), occurred on the morning of November 23, 2009, in the town of Ampatuan in Maguindanao province, on the island of Mindanao in the Philippines. While the victims were on their way to file a certificate of candidacy for Esmael Mangudadatu, vice mayor of Buluan town, they were kidnapped and brutally killed. Mangundadatu was challenging Datu Unsay mayor Andal Ampatuan, Jr., son of the incumbent Maguindanao governor Andal Ampatuan, Sr., in the forthcoming Maguindanao gubernatorial election, part of the national elections in 2010. The 58 people killed included Mangudadatu's wife, his two sisters, journalists, lawyers, aides, and motorists who were witnesses or were mistakenly identified as part of the convoy.


The Committee to Protect Journalists (CPJ) has called the Maguindanao massacre the single deadliest event for journalists in history. At least 34 journalists are known to have died in the massacre. In a statement, CPJ executive director Joel Simon noted that the killings, "appears to be single deadliest event for the press since 1992, when CPJ began keeping detailed records on journalist deaths."] The CPJ further noted that, "Even as we tally the dead in this horrific massacre, our initial research indicates that this is the deadliest single attack on the press ever documented by CPJ." Even before the Maguindanao massacre, the CPJ had labeled the Philippines the second most dangerous country for journalists, second only to Iraq. source: wiki.com




Textbook on the new Philippine Constitution
Textbook pn The Philippine Constitution 2002 edition
The law on obligations and contracts
Comments and cases on obligations and contracts: Y Hector S. De Leon
The law on partnerships and private corporations

Political Law Doctrines

Archipelagic Doctrine – Integration of a group of islands to the sea and their oneness so that together they can constitute one unit, one country, and one state. An imaginary single baseline is drawn around the islands by joining appropriate points of the outermost islands of the archipelago with straight lines and all islands and waters enclosed within the baseline form part of the territory. The main purpose is to protect the territorial interests of an archipelago. (Art 1.) 

Doctrine of Parens Patriae – government as guardian of the rights of the people. (Governemntof Philippine Islands v. El Monte Piedad) 

Plain View Doctrine – the objects within the sight of an officer who has a right to be in a position to have that view are subject to seizure and may be presented as evidence (open to the eye and hand). 

Doctrine of Indelible Allegiance – an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of the second state whose nationality he has acquired. 

Doctrine of Judicial Supremacy – Although holding neither purse nor sword and so regarded as the weakest of the three departments of the government, the judiciary is nonetheless vested with the power to annul the acts of either the Legislative or the Executive department or both when not conformable to the fundamental law. 

Regalian Doctrine ( Jura Regalia) – All lands of the public domain, waters, minerals, coal, petroleum and other minerals oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora, and fauna and natural resources belong to the State. With the exception of agricultural lands, all other natural resources shall not be alienated. (Sec. 2 Art XII) 

Stewardship Doctrine – Private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners. 

Doctrine of Shifting Majority – For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. 

Doctrine of Qualified Political Agency or Alter Ego Principle – Acts of the Secretaries of Executive departments when performed and promulgated in the regular course of business or unless disapproved or presumptively the acts of the Chief Executive (Villena v. Secretary of the Interior) 

Doctrine of Proper Submission- plebiscite may be held on the same day as regular election provided the people are sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal amendments is constitutional. All the amendments must be submitted for ratification at one plebiscite only.  The people have to be given a proper frame of reference in arriving at their decision. They have no idea yet of what the rest of the amended constitution would be. (Tolentino v. Comelec)


(The (revised) 1973 Philippine Constitution: Notes and cases)
(The 1987 Philippine Constitution: A reviewer-primer)
(Philippine constitutional law)

Functions of Supreme Court

The Supreme Court of the Philippines (Filipino: Kataas-taasang Hukuman ng Pilipinas orKorte Suprema) is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice. Pursuant to the Constitution, the Supreme Court has "administrative supervision over all courts and the personnel thereof."

The powers of the Supreme Court are defined in Article VIII of the 1987 Constitution. These functions may be generally divided into two – judicial functions and administrative functions. The administrative functions of the Court pertain to the supervision and control over the Philippine judiciary and its employees, as well as over members of the Philippine bar. Pursuant to these functions, the Court is empowered to order a change of venue of trial in order to avoid a miscarriage of justice and to appoint all officials and employees of the judiciary. The Court is further authorized to promulgate the rules for admission to the practice of law, for legal assistance to the underprivileged, and the procedural rules to be observed in all courts.


The more prominent role of the Court is located in the exercise of its judicial functions. Section 1 of Article VIII contains definition of judicial power that had not been found in previous constitutions. The provision states in part that:


Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.


The definition reaffirms the power of the Supreme Court to engage in judicial review, a power that had traditionally belonged to the Court even before this provision was enacted. Still, this new provision effectively dissuades from the easy resort to the political question doctrine as a means of declining to review a law or state action, as was often done by the Court during the rule of President Ferdinand Marcos. As a result, the existence of “grave abuse of discretion” on the part of any branch or instrumentality of the government is sufficient basis to nullify state action.
source: wiki.com

Hilario Davide

Chief Justice Hilario G. Davide 


Tenure: November 30, 1998 - December 20, 2005
Appointed by: Estrada
Birthdate: December 20, 1935
Place of Birth: Colawin, Argao, Cebu
Children: Hilario III, Joseph Bryan Hilary, Sheryl Ann, Noreen, and Delster Emmanuel
Name of Spouse :
Virginia Jimenea Perez

Education: 
Elementary : Argao (Cebu) Elementary School, 1949 
High School : Abellana Vocational High School, Cebu City, 1953 
College : University of the Philippines (U.P.) Diliman, Quezon City 
Bachelor of Laws, University of the Philippines, 1959 
Bachelor of Science in Jurisprudence, University of the Philippines, 1958 
Associate in Arts, University of the Philippines, 1955 
Degree of Doctor, honoris causa, Soka University, Japan, March 2002 
Doctor of Public Administration, honoris causa, Polytechnique University of the Philippines, December 9, 2005 
Doctor of Laws, honoris causa, University of Cordilleras, Baguio City, May 2004 
Doctor of Humanities, honoris causa, Northern Christian College, Laoag City, March 2004 
Doctor of Humanities, honoris causa, for Peace and Development, Notre Dame University, Cotabato City, March 2004 
Doctor of Laws, honoris causa, University of San Carlos, Cebu City, March 2003 
Doctor of Laws, honoris causa, De La Salle, Manila, June 2001 
Doctor of Laws, honoris causa, Angeles University Foundation, Angeles City, April 2001 
Doctor of Laws, honoris causa, University of the Philippines, April 2001 
Doctor of Laws, honoris causa, Far Eastern University, Manila, April 2001 
Doctor of Humanities, honoris causa, University of the Visayas, Cebu City, March 2001 
Doctor of Humanities, honoris causa, Ateneo de Manila University, March 2001 
Doctor of Humanities, honoris causa, University of Cebu, Cebu City, March 2000 
Doctor of Laws, honoris causa, Southwestern University, Cebu City, March 1999 

Professional Career:
Private Secretary to the Vice Governor and then to the Governor of Cebu, 1959 – 1963 
Faculty Member, College of Law, Southwestern University, Cebu City, 1962 – 1968 
Delegate, Constitutional Convention, representing the 4th District of Cebu, 1971 
Assemblyman, Interim Batasang Pambansa representing Region VII, June 12, 1978 – June 30, 1984 Commissioner, Constitutional Commission of 1986 which drafted the 1987 Constitution, June 2, 1986 – Oct. 15, 1986 
Chairman, Commission on Elections, Feb. 16, 1988 – Jan. 11, 1990 
Chairman, The Presidential Fact Finding Commission, Dec. 7, 1989 – Jan. 11, 1990 
Chairman, The Presidential Fact Finding Commission, Jan. 12, 1990 – Jan. 15, 1991 
Chief Justice, Supreme Court of the Philippines, Nov. 30, 1998 – Dec. 20, 2005 
Associate Justice, Supreme Court of the Philippines, Jan. 24, 1991 – Nov. 29, 1998 
Chairman, Judicial and Bar Council Presiding Officer, 
Presidential Impeachment Court 
Chairman, Presidential Electoral Tribunal 
Chairman, Board of Trustees, Philippine Judicial Academy 
Chairman, Executive Committee, Judicial Reform Program
source: e-library of SC




Philippine law on sales

What is Sharia?

Sharia (in Arabic "way" or "path") is connected to the religion of Islam. Most Muslims believe Sharia is derived from two primary sources of Islamic law; namely, the divine revelations set forth in the Qur'an, and the sayings and example set by the Islamic Prophet Muhammad in the Sunnah. Fiqh("jurisprudence") interprets and extends the application of Sharia to questions not directly addressed in the primary sources by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur'an and Sunnah through qiyas. Shia jurists replace qiyas analogy with 'aql, or "reason". 


All Muslims believe Sharia is God's law, but differ as to what exactly it entails. Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well. 


Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of Sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader. 


The introduction (or in some cases, reintroduction) of Sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g. in India) have attained institutional recognition of Sharia to adjudicate their personal and community affairs. In western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes, with varying degrees of success (e.g. Britain's Muslim Arbitration Tribunal). Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War). source:wiki.com