YOU REALLY CANNOT PLEASE EVERYONE FOR THE MOMENT YOU START DOING IT, YOU'LL EXPERIENCE YOUR GREATEST DOWNFALL...

Finally, first semester is over! It's now time to rest and prepare for another semester of battle. I know that next semester will be more difficult and challenging. But with God's help and guidance, everything will seem so light.

I am still uncertain of my grades for the first semester. I am also uncertain whether I am still a regular student or not. Nevertheless, I remain positive. I have a BIG GOD who will be there for me, to help me succeed and realize my dreams. With him, everything is possible.

Lord, grant me the serenity to accept the things I cannot change, to change those that I can and the wisdom to know their difference.

Lord, as I take my final exams for this semester, I pray for gift of wisdom and strength that I may hurdle whatever difficulty I may encounter. Be with me always Lord and guide me to the path where you want me to be.

In you Lord, I trust and I believe.

Trees That Wood

Once there were three trees on a hill in the woods. They were discussing their hopes and dreams when the first tree said, "Someday I hope to be a treasure chest. I could be filled with gold, silver and precious gems. I could be decorated with intricate carving and everyone would see the beauty."

Then the second tree said, "Someday I will be a mighty ship. I will take kings and queens across the waters and sail to the corners of the world. Everyone will feel safe in me because of the strength of my hull."

Finally the third tree said, "I want to grow to be the tallest and straightest tree in the forest. People will see me on top of the hill and look up to my branches, and think of the heavens and God and how close to them I am reaching. I will be the greatest tree of all time and people will always remember me."

After a few years of praying that their dreams would come true, a group of woodsmen came upon the trees. When one came to the first tree he said, "This looks like a strong tree, I think I should be able to sell the wood to a carpenter" ... and he began cutting it down. The tree was happy, because he knew that the carpenter would make him into a treasure chest.

At the second tree a woodsman said, "This looks like a strong tree, I should be able to sell it to the shipyard." The second tree was happy because he knew he was on his way to becoming a mighty ship.

When the woodsmen came upon the third tree, the tree was frightened because he knew that if they cut him down his dreams would not come true. One of the woodsmen said, "I don't need anything special from my tree so I'll take this one", and he cut it down.

When the first tree arrived at the carpenters, he was made into a feed box for animals. He was then placed in a barn and filled with hay. This was not at all what he had prayed for. The second tree was cut and made into a small fishing boat. His dreams of being a mighty ship and carrying kings had come to an end. The third tree was cut into large pieces and left alone in the dark. The years went by, and the trees forgot about their dreams.

Then one day, a man and woman came to the barn. She gave birth and they placed the baby in the hay in the feed box that was made from the first tree. The man wished that he could have made a crib for the baby, but this manger would have to do. The tree could feel the importance of this event and knew that it had held the greatest treasure of all time. Years later, a group of men got in the fishing boat made from the second tree. One of them was tired and went to sleep. While they were out on the water, a great storm arose and the tree didn't think it was strong enough to keep the men safe. The men woke the sleeping man, and he stood and said "Peace" and the storm stopped. At this time, the tree knew that it had carried the King of Kings in its boat.

Finally, someone came and got the third tree. It was carried through the streets as the people mocked the man who was carrying it. When they came to a stop, the man was nailed to the tree and raised in the air to die at the top of a hill. When Sunday came, the tree came to realize that it was strong enough to stand at the top of the hill and be as close to God as was possible, because Jesus had been crucified on it.

The moral of this story is that when things don't seem to be going your way, always know that God has a plan for you. If you place your trust in Him, He will give you great gifts. Each of the trees got what they wanted, just not in the way they had imagined. We don't always know what God's plans are for us. We just know that His ways are not our ways, but His ways are always best.

Those who never take risks can only see other people’s failures.(Eleven Minutes)

FINALLY, I FOUND MR. RIGHT!!!! :) LOVE MOVES IN MYSTERIOUS WAYS!!!! :)

"When we least expect it, life sets us a challenge to test our courage and willingness to change; at such a moment, there is no point in pretending that nothing has happened or in saying that we are not ready. The challenge will not wait. Life does not look back. A week is more than enough time for us to decide whether or not to accept our destiny.”

UST LAW REVIEW 2007-2008

Reflections of the Warrior of the Light - The right renouncement
Published
By Paulo Coelho
on June 4, 2008

“In any activity, it is important to know what to expect, the means of obtaining the objective, and our capability for the proposed task.

“Only he who, thus equipped, feels no desire for the results of the conquest, and remains absorbed in the combat, can truly say he has renounced the fruit.

“One can renounce the fruit, but that renouncement does not mean indifference to the result.”

The warrior of the light listens respectfully to Ghandi’s strategy. And is not distracted by people who, incapable of achieving any result, are forever preaching renouncement.

The man of wisdom is never of two minds;the man of benevolence never worries;the man of courage is never afraid.(Confucius)

There are moments when troubles enter our livesand we can do nothing to avoid them.But they are there for a reason.Only when we have overcome themwill we understand why they were there.(The Fifth Mountain)

Today in Digg, I came across a blog that listed Gandhi’s Top 10 Fundamentals for Changing the World.
I wish then to reproduce these gems here in my blog:
From: http://paulocoelhoblog.com/

1. Change.
“You must be the change you want to see in the world.”
“As human beings, our greatness lies not so much in being able to remake the world - that is the myth of the atomic age - as in being able to remake ourselves.”

2. Control.
“Nobody can hurt me without my permission.”

3. Forgiveness.
“The weak can never forgive. Forgiveness is the attribute of the strong.”
“An eye for eye only ends up making the whole world blind.”

4. Action.
“An ounce of practice is worth more than tons of preaching.”

5. The present moment.
“I do not want to foresee the future. I am concerned with taking care of the present. God has given me no control over the moment following.”

6. Everyone is human.
“I claim to be a simple individual liable to err like any other fellow mortal. I own, however, that I have humility enough to confess my errors and to retrace my steps.”
“It is unwise to be too sure of one’s own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.”

7. Persist.
“First they ignore you, then they laugh at you, then they fight you, then you win.”

8. Goodness.
“I look only to the good qualities of men. Not being faultless myself, I won’t presume to probe into the faults of others.”
“Man becomes great exactly in the degree in which he works for the welfare of his fellow-men.”
“I suppose leadership at one time meant muscles; but today it means getting along with people.”

9. Truth.
“Happiness is when what you think, what you say, and what you do are in harmony.”
“Always aim at complete harmony of thought and word and deed. Always aim at purifying your thoughts and everything will be well.”

10. Development.
“Constant development is the law of life, and a man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position.”

HAPPY BIRTHDAY JAYSON!

The Warrior knows that in all languages the mostimportant words are the small words.YES. LOVE. GOD.They are words that are easy enough to say,yet vast empty spaces.(Manual of the Warrior of Light)

It's another tiring day for me. I'm in school now, trying to finish some assignments. Nessie won't be able to come so I might spent the whole day alone here in the ULR Office. I wish I won't het bored!

CHILDREN OF MARY IMMACULATE

These pictures were taken last year. I'll upload our new pics soon. :)

Classes are about to begin. A day ago, I was too excited. But now, I feel nervous and tired. I realized that I wasn't able to spend much time for myself. I gave all my time to my extra-curricular activities. I devoted my time helping the student council and bar ops team. But it was my choice and I should never regret it.

Honestly, the sole reason why I keep myself busy is to forget whatever pain I'm going through. But I guess, that did not do any good. I'm still the same Kat! Weak and vulnerable.... I'm such a coward!!!! Why can't I face reality?

IT WAS A MESS!!

We had our consecration and renewal of vow this morning. But everything did not turn out well. Despite the preparations and practices, it was a mess! As in! During the practice, we decided that I will no longer mention the names of each and every member. So I did not prepare a list of all the members. But this morning, when I was about to introduce the members, Fr. Olet asked me to mention all their names. I was caught unprepared!!! Due to nervousness, I wasn’t able to remember the names of all my members. I was only able to mention their nicknames! It was an embarrassing moment for me. At that moment, all I wanted was to disappear. I felt ashamed for what happened.

My member’s performance added to my anxiety and discomfort this morning. I’m very disappointed to what they have done. I reminded them several times of the things that they need to do and bring but they still failed to follow me. Some came late. Some did not bring the copies of their vow or credo. Some were not paying attention to the mass. Some are so “pasaway”.

I don’t anymore want to remember what happened this morning. As what Geng said, everything was over and we just have to move on. Yes, she’s right! But I hope and pray that it will serve as a lesson to all of us. I hope that we will learn from what happened so that we can be better individuals.

sample Labor questions with suggested answers

I was asked to prepare questions with suggested answers for Political Law and Labor Law for the mock bar exams of all Thomasian barristers. I’m providing a copy of everything I have prepared. I hope that they’ll be helpful to other barristers.

I’m about to finish the reviewer for Constitutional Law. I’ll also post a copy here.

---

“A” was hired by company “B” in January 1980 until A was illegally dismissed on April 30, 1990 as found by a Labor Arbiter who ordered reinstatement and full backwages from April 30, 1990 until A’s reinstatement. The Arbiter’s decision was promulgated on April 29, 1995. B appealed claiming, among others, that the award for backwages was excessive in that it went beyond three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696). Is B’s contention tenable? Why?

Suggested Answer:

No, the contention of “B” is not tenable.

Rep. Act. No. 6715, which was enacted in 1989, in effect set aside the three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696) when it provided that the full backwages that an unjustly dismissed employee shall receive shall be computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

The word “actual” was inserted in the law by Rep. Act No. 6715. Thus, in accordance with the aforesaid law, an unjustly dismissed employee shall receive his full backwages computed from the time his compensation was withheld from him up to the time of his actual reinstatement even if this period is more than three years.

Another Suggested Answer:

No, the contention of “B” is not tenable. The Supreme Court (In Ferrer v. NLRC, July 5, 1993) abandoned the Mercury Drug Rule and in 1996 Bustamante v. NLRC, 265 SCRA 61 the Supreme Court said:

[Quoting Article 279 of the Labor Code] Under the above quoted provision, it became mandatory to award backwages to illegally dismissed regular employees. The law specifically declared that the award of backwages was to be computed from the time of his reinstatement.

xxx

The clear legislative intent of the amendment in R.A. No. 6715 is to give more benefits to the workers than was previously given them under the Mercury Drug rule. In other words, the provision calling for “full backwages” to illegally dismissed employees is clear, plain and free from ambiguity, and, therefore, must be applied without attempted or strained interpretation.

What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney’s fees, representation expenses and the like?

Suggested Answer:

The Labor Code (in Art. 241(n)) provides that “no special assessments or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose.”

Another Suggested Answer:

In the case of ABS-CBN Employees Supervisors Union vs. ABS-CBN Broadcasting Corp., and Union Officers, G.R. No. 106518, March 11, 1999, the Supreme Court ruled that the following are the requisites:

1. Authorization by a written resolution of the majority of all members at the general membership meeting duly called for the purpose;
2. Secretary’s record of the minutes of meeting; and
3. Individual written authorization for check-off duly signed by the employee concerned. (See also: Gabriel vs. Secretary of Labor, G.R. No. 115949, March 16, 2000).

Company “A” and Union “B” could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker-members of B for their illegal acts. The Secretary of Labor assumed jurisdiction, referred the strike to the NLRC and issued a return-to work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agree to submit the case for resolution after the submission of the position papers and evidence.

Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the Court of Appeals claiming that they were deprived of their right to due process and that the affidavits submitted by A were self-serving and of no probative value. Should the appeal prosper? State the reason(s) for your answer clearly.

Suggested Answer:

The appeal should not prosper.

The Supreme Court, in many cases, has ruled that decisions made by NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker-members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, 16 March 1989).

Another Suggested Answer:

No, the appeal will not prosper. In CMP Federal Security Agency vs. NLRC, G.R. No. 125298, February 11, 1999, the Supreme Court ruled:

“The standards of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. Hence, it is not legally objectionable for being violative of due process, for the labor arbiter to resolve a case based solely on the position papers, affidavits or documentary evidence submitted by the parties. The affidavits of witnesses in such case may take place of direct testimony.

What conditions must prevail and what requirement, if any, must an employer comply with to justify or effect a valid retrenchment program?

Suggested Answer:

In the case of Asian Alcohol Corp. vs. NLRC, G.R> No. 131108, March 25, 1999, the Supreme Court stated that the requirements for a valid retrenchment must be proved by clear and convincing evidence: (1) that the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) that the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) that the employer pays the retrenched employees separation pay equivalent to one month pay or at least one month pay every year of service, whichever is higher; (4) that the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees ‘right’ to security of tenure; and (5) that the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as statues (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers.

What qualifying circumstances will convert “illegal recruitment” to “economic sabotage,” thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and a fine of at least P500, 000.00?

SUGGESTED ANSWER:
Article 38 (b) of the Labor Code, as amended by RA 8042 (Migrant Workers Act) provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the following circumstances exists:

When illegal recruitment is committed by a syndicate. A syndicate exists when three or more persons conspire or confederate with one another in carrying out any unlawful or illegal transaction, enterprise or scheme;

When illegal recruitment is committed in a large scale, as when it is committed against three or more persons individually or as a group.

Is the commission of an unfair labor practice by an employer subject to criminal prosecution?

SUGGESTED ANSWER:

Yes, the second paragraph of Art. 247 of the Labor Code expressly so provides. The last paragraph of Art. 247 provides that no criminal prosecution for unfair labor practice maybe made without a prior final judgment in an unfair labor practice administrative case filed before the labor arbiter of the NLRC pursuant to Art. 217 (a) of the Labor Code and even with such final judgment in an administrative case, still, the final judgment would no longer be binding in the criminal case. Neither would such judgment be considered as evidence in the criminal case. At best, it would only serve as proof of compliance of the required prior exhaustion of the administrative complaint.

How are the “portability” provisions of Republic Act No. 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? Please explain your answers briefly.

SUGGESTED ANSWER:

The portability provisions of Republic Act 7699 allow the transfer of funds for the account and benefit of the worker who transfers from one system to another.
This is advantageous to the SSS and GSIS members for purposes of death, disability or retirement benefits. In the event the employees transfer from the private sector to the public sector, or vice versa, their creditable employment services and contributions are carried over and transferred from one system to the other.

Mariano Martillo was a mason employed by the ABC Construction Company. Every time that ABC had a project, it would enter into an employment contract with Martillo for a fixed period that coincided with the need for his services, usually for a duration of three to six months.
Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months. During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank-and-file construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Martillo and other similarly-situated project workers demanded that the increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit.

If you were ABC’s legal counsel, how would you respond to this demand?

SUGGESTED ANSWER:

As legal counsel for ABC, I would argue that the employment of Martillo was fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of his engagement. Rendering 14 months of work does not make him a regular employee, when to begin with, he was employed for a specific project, i.e., which is the construction of a particular 40 storey building. The rule on more than 1 year of service making the employment regular applies only to casual employees, hence, Mariano does not belong to the bargaining unit of regular employees.

How is a project worker different from a casual or contractual worker? Briefly explain your answers.

SUGGESTED ANSWER:

A project worker is employed for a specific project or undertaking the completion or termination of which is determined at the time of his engagement. His work need not be incidental to the business of the employer. His work may exceed one year without necessarily making him

regular employee.

A casual employee is engaged to perform a job, work, or service which is incidental to the business of the employer; moreover, the definite period of his employment is made known to him at the time of his engagement. His continued employment after the lapse of one year makes him a regular employee. Under the Social Security Law, employment that is purely casual and not for the purpose of occupation or business of the employer is not under the coverage of the aforesaid law.

A project worker on the other hand, is a specific term used to designate workers in the construction industry hired to perform a specific undertaking for a fixed period which is co- terminus with a project or phase thereof determined at the time of the engagement of the employee, and it is mandatory that a termination report be submitted to the nearest public employment office upon the completion of the construction project. There is no such requirement for an ordinary contractual worker. (Aurora Land vs. NLRC 266 SCRA 48)

Can an overseas worker refuse to remit his earnings to his dependents and deposit the same in the country where he works to gain more interests? Explain.

Suggested Answer:

No, such refusal to remit his earnings to his dependents is not allowed under the law which considers mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor. (Article 22 of the Labor Code)

The reason for this mandatory requirement is to protect the welfare of families, dependents and beneficiaries and to ensure that the foreign exchange earnings of these workers are remitted through authorized financial institutions of the Philippine government in line with the country’s economic development program. Non-compliance with the laws and regulations on remittance of foreign exchange earnings and recourse to the use of unauthorized and unofficial financing institutions had led to the detriment of the country’s balance of payments and economic development program. Consequently, it is imperative that the mandatory remittance requirement be fully complied with by all concerned through the institution of appropriate remittance facilities and the imposition of effective sanctions. (“Whereas” clauses, Executive Order No. 857; Section 2, Rule XIII, Book I, Rules to Implement the Labor Code; Section 1, Executive Order No. 857; Section 2, Rule III, Rules and Regulations Implementing Executive Order No. 857).

Wonder Travel and Tours Agency (WTTA) is a well known travel agency and an authorized sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers, WITA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved?

Suggested Answer:

The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not. (Article 26 of the Labor Code). It is, therefore, of no consequence that its purpose is not for profit but to help Filipinos find employment abroad.
(Note: It must be stressed that the POEA Rules disqualify not only travel agencies and sales agencies of airline companies but also the following, to wit:
a. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; and
b. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency. (Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4, 2002]; Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers [May 23, 2003]).

What property right is conferred upon an employee once there is an employer-employee relationship? Discuss briefly.

Suggested Answer:

Once an employer-employee relationship is established, such employment is treated, under our constitutional framework, as a property right. When a person has no property, his job may possibly be his only possession or means of livelihood and those of his dependents. When a person loses his job, his dependents suffer as well. The worker should, therefore, be protected and insulated against any arbitrary deprivation of his job. (Philips Semiconductors [Phils.], Inc. vs. Fadriquela, G. R. No. 141717, April 14, 2004; Philippine Geothermal, Inc. vs. NLRC, 189 SCRA 211 [1990]).

What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor?

Suggested Answer:

This concept of liberal approach is enshrined both in the Labor Code and the Civil Code. More specifically, the Labor Code declares that all doubts in the implementation and interpretation of the provisions of the Code, including its implementing rules and regulations, shall be resolved in favor of labor. The Civil Code likewise pronounces that “in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.” (See Article 4, Labor Code; Article 1702, Civil Code).

This concept, however, should not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. (Bonifacio vs. Government Service Insurance System, 146 SCRA 276).

What is the purpose of labor legislation?

Suggested Answer:

Labor legislation refers to laws, statutes, rules, regulations and jurisprudence which set employment standards and govern the relations between capital and labor. Its purpose is to breathe life into the protection-to-labor clause of the Constitution (Section 3, Article XIII, 1987 Constitution) by affording protection to labor, promoting full employment, ensuring equal work opportunities regardless of sex, race or creed, regulating the relations between workers and employers and assuring that the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work are amply protected. (Article 3, Labor Code).

A case against an employer company was filed charging it with having violated the prohibition against offsetting undertime for overtime work on another day. The complainants were able to show that, pursuant to the Collective Bargaining Agreement (CBA), employees of the union had been required to work “overtime” on Saturday but were paid only at regular rates of pay on the thesis that they were not required to complete, and they did not in fact complete, the eight-hour work period daily from Monday through the employees were not entitled to overtime compensation, i.e., with the premium rates of pay. Decide the controversy.

Suggested Answer:

The employer is correct. While Art. 88 of the Labor Code clearly provides that undertime work on any other particular day shall not be offset by overtime work on any other day, this rule is inapplicable in this case pertaining to Saturday work which in reality does not constitute overtime work as Saturday is still a working day under the law and there is no CBA stipulation against it.

Another Suggested Answer:

Art. 88 of the Labor Code provides that undertime work on any particular day shall not be offset by overtime work on any other day. The CBA being the law between the parties and the Union having shown that the employees rendered overtime work on Saturday, the contention of the employer is not tenable. The employer cannot be use the undertime of Monday through Friday to offset the overtime on Saturday. Hence, the employees are entitled to overtime compensation, i.e., premium rates of pay on Saturday.

The Labor Code treats differently in various aspects the employment of (i) managerial employees, (ii) supervisory employes, and (iii) rank-and-file employees. State the basic distinguishing features of each type of employment.

Suggested Answer:

Under Book Three of the Labor Code, a managerial employee refers to one whose primary duty consists of the management of the establishment in which he is employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. A supervisor and a rank-and-file employee can be considered a s members of the managerial staff, and therefore, a managerial employee if their primary duty consists of work directly related to management policies; if they customarily and regularly exercise discretion and independent judgment; regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which they are employed or a subdivision thereof; or execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or execute under general supervision special assignments and tasks; and who do not devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work described above. All others are rank and file employees under said Book (Art. 82, Labor Code, Sec. 2 ©, Rule I, Bk. III, Omnibus Rules Implementing the Labor Code).

Under Book Five of the Labor Code, “managerial employee” is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. A supervisory employee is one who, in the interest of the employer, effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not failing within any of the above definitions are considered rank-and-file employees for the purposes of this Book (Art. 212 (M), Labor Code).

Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the Department of Labor and Employment (DOLE) a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Trinio, a rank-and-file employee, who led the “walk out”. Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the seven-day ban under the Labor Code. Oakwood claimed that Cesar Trinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case.

Suggested Answer:

When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Trinio. The Labor Code provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to acts during the strike, like acts of violence, coercion or intimidation or obstruction of inress to or egress from the employer’s premises for lawful purposes or obstruction of public thoroughfares. The union mebers, including Cesar Trinio, did not cmmit any of these acts. Thus, it would be illegal to dismiss them.

In a labor dispute, the Secretary of Labor issued and “Assumption Order”. Give the legal implications of such an order.

Suggested Answer:

Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution.

Pablo was a farm-hand, in a plantation owned by ABC & Co., working approximately 6 days a week for a good 15 years. Upon Pablo’s death, his widow filed a claim for burial grant and pension benefits with the Social Security System (SSS). The claim was denied on the ground that Pablo had not been a registered member-employee. Pablo’s widow filed a petition before the SSS asking that ABC & Co. be directed to pay the premium contributions of Pablo and that his name be reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow, harrow and burrow, using his own carabao and other implements and following his own schedule of work hours, without any supervision from the company. If proven, would this factual setting advanced by ABC & Co. be a valid defense against the petition?

Suggested Answer:

ABC & CO. has a valid defense. Pablo should be an employee of ABC & Co. to be under the compulsory coverage of the SSS. To be an employee, Pablo should be under control of ABC & Co. as regards his employment. But the facts show that he was not under the control of ABC & Co. as regards his employment. Among others, he had his own schedule of work hours, without any supervision from the company. Thus he is an independent contractor and not an employee. An independent contractor is not under the compulsory coverage of the SSS. He maybe covered as a self-employed person. But then as such, ABC & Co. has no legal obligation to report Pablo for coverage under the SSS because ABC & Co. is not Pablo’s employer.

Another Suggested Answer:

It is not a valid defense, for Pablo could be considered an employee of ABC & Co. The elements of hiring, payment of wages, power to dismiss and power to control are presumed from the fact that Pablo is working 6 days a week, for 15 years now. Pablo’s use of his plow, harrow, burrow, carabao and other implements and his having his own schedule of work hours without any supervision from the company do not erase the element of control on the part of ABC & CO. because under the “control test”, it is enough that the employer’s right to control exists. It is not necessary that the same be exercised by the employer, it is enough that such right to control exists. (Religious of the Virgin Mary v. NLRC, 316 SCRA 614, 629 [1999]).

May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the equal protection clause of the Constitution? Explain.

Suggested Answer:

Yes. The State is bound under the Constitution to afford full protection to Labor; and when conflicting interests collide and they are to be weighed on the scales of social justice, the law should accord more sympathy and compassion to the less privileged working man. (Fuentes v. NLRC, 266 SCRA 24 [1997]). However, it should be borne in mind that social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing. (Corazon Jamer v. NLRC, 278 SCRA 632 [1997]).

Another Suggested Answer:

No, social justice as a guiding principle in law may not be used by the courts if it collides with the equal protection clause of the Constitution. Social justice is not a magic wand applicable in all circumstances. Not all labor cases will be automatically decided in favor of the worker. Management has also rights which are entitled to recognition and protection; justice must be dispensed according to facts and law; and social justice is not designed to destroy or oppress the employer.

Another Suggested Answer:

Social justice as a guiding principle in Labor Law can be implemented side by side with the equal protection clause of the Constitution.
In the implementation of the principle of social justice, the Constitution commands that the State shall afford protection to labor. Thus Labor Law may be pro-labor in the sense that labor is given certain benefits not given to management. But this is not necessarily violative of the equal protection clause of the Constitution because the said clause allows reasonable classification.

sample Poli questions with suggested answers

1. Jurisdiction over an action relating to the conduct of plebiscite, such as an action to annul its result, lies with:

A.) RTC
B.) COMELEC
C.) DILG

Explain your answer.

ANS: COMELEC. The conduct of plebiscite and determination of its result have always been the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the filed of election and related laws. (Cayetano vs. COMELEC, G.R. Nos. 166388 & 166652, January 23, 2006)

2. When may preventive suspension be imposed under the Local Government Code?

ANS: Under Section 63 of the Local Government Code, preventive suspension may be imposed: (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. (Desama vs. Gozun, G.R. No. 157882, March 30, 2006)

3. May a City Mayor file a suit on behalf of the City without the prior authorization of the City Council?

ANS: Yes. The mayor has the authority to file suits “for recovery of funds and property” on behalf of the city, even without the prior authorization from the Sanggunian. This conclusion is strengthened by the fact that nowhere in the enumerated powers and duties of the Sanggunian can one find the requirement of such prior authorization in favor of the mayor for the purpose of filing suits on behalf of the city. Civil Case No. C-18308 was filed by Malonzo to enjoin the registration of what he deemed to be an anomalous deed of sale, while Civil Case No. C-18337 was instituted to annul the Deed of Absolute Sale and to cancel the title issued to Gotesco. Obviously, these suits were filed, initially to preserve, and subsequently to recover, the property subject of the said suits, to protect the interests of the City of Caloocan over the said parcel of land. Thus, it can be said that the institution of Civil Cases No. C-18308 and C-18337 was made within the bounds of Mal0onzo’s authority as the city mayor. (City of Caloocan vs. Court of Appeals, G.R. No. 145004, May 3, 2006)

4. Explain the concept of the President’s immunity from civil or criminal suit.

ANS: Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance and distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from the office only in the mode provided by law and that is by impeachment. (David vs. Arroyo, G.R. No. 171396, May 3, 2006)

5. May the Office of the Ombudsman investigate constitutional officers removable only by impeachment?

ANS: Yes. Section 22 thereof vests in the Office of the Ombudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Office of the Ombudsman vs. Court of Appeals, 491 SCRA 92, June 16, 2006)

6. What is a pre-proclamation controversy?

ANS: A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of election returns. The proceedings are summary in nature in that there is no room for the presentation of evidence aliunde, the inspection of voluminous documents, and for meticulous technical examinations which take up considerable time. (Sinsuat vs. Commission on Elections, 492 SCRA 391, June 23, 2006)

7. What is the effect of filing an election protest on the pre-proclamation controversy?

ANS: As a rule, the filing of an election protest (1) preludes the subsequent filing of a pre-proclamation controversy or (2) amount to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest, all questions relative thereto will have to be decided in the case itself and not in another proceeding to prevent confusion and conflict of authority. (Sinsuat vs. Commission on Elections, 492 SCRA 391, June 23, 2006)

8. What are the exceptions to the rule against holding multiple offices?

ANS: The Court cautiously allowed only two exceptions to the rule against multiple offices: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive officials specified in Section 3, Article VII without additional compensation in an ex officio capacity as provided by law and as required by the primary functions of said officials’ office. The Court further qualified that additional duties must not only be closely related to, but must be required by the official’s primary functions. Moreover, the additional post must be exercised in an ex officio capacity, which “denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.” Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercise in an ex officio capacity. (Public Interest Center, Inc. vs. Elma, 494 SCRA 63, June 30, 2006)

9. Is the political question doctrine still in effect in light of the power of judicial review over acts of the legislative or executive done with grave abuse of discretion?

ANS: Yes. While it is conceded that Article VIII, Section 1 of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions as such as those which arise in the field of foreign relations. (Bayan [Bagong Alyansang Makabayan] vs. Zamora, 342 SCRA 449 [2000])

10. State the exception to the general rule that promulgation of administrative issuances requires previous notice and hearing.

ANS: The general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing. A legislative rule, on the other hand, is in nature of subordinate legislation, crafted to implement a primary legislation.

When an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and, thereafter, to be duly informed, before the issuance is given the force and effect of law.

To be valid, an administrative issuance must not be ultra vires or beyond the limits of the authority conferred. It must not supplant or modify the Constitution, its enabling statute and other existing laws, for such is the sole function of the legislature which the other branches of the government cannot usurp.

It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they were authorized to be issued, then they must be held to be invalid. (Executive Secretary vs. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006)

11. State the exception to the rule that government projects cannot be restrained by injunction.

ANS: Presidential Decree No. 1818 prohibits courts from issuing injunctions against government infrastructure projects. In Garcia vs. Burgo (353 Phil. 740, 743 [1998]), Presidential Decree No. 1818 was held to prohibit courts from issuing an injunction against any infrastructure project in order not to disrupt or hamper the pursuit of essential government projects or frustrate the economic development effort of the nation.

While its sole provision would appear to encompass all cases involving the implementation of projects and contracts on infrastructure, natural resource development and public utilities, this rule, however, is not absolute as there are actually instances when Presidential Decree No. 1818 should not find application. In a spate of cases, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts.

The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably violate his rights and tend to render the judgment ineffectual.

Here, there is adequate evidence on record to justify the conclusion that the project of NAPOCOR probably imperils the health and safety of the petitioners so as to justify the issuance by the trial court of a writ of preliminary injunction.

In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustration of government infrastructure projects, particularly by provisional remedies, to the detriment of the greater good by disrupting the pursuit of essential government projects or frustrate the economic development effort of the nation. Presidential Decree No. 1818, however, was not meant to be a blanket prohibition so as to disregard the fundamental right to health, safety and well-being of a community guaranteed by the fundamental law of the land. (Hernandez vs. National Power Corp., G.R. No. 145328, March 23, 2006)

12. May the candidate who obtains the second highest number of votes be proclaimed in case the winner is disqualified? State the exception.

ANS: It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in wining candidate is ineligible or disqualified. This rule admits an exception. But this exception is predicated on the concurrence of two requisites, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the real of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Sinsuat vs. Commission on Elections, 492 SCRA 391, June 23, 2006)

13. What are the issues (areas of concern) in the exercise of eminent domain?

ANS: Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. (Masikip vs. City of Pasig, G.R. No. 136349, January 23, 2006)

14. State the doctrine of exhaustion of administrative remedies.

ANS: Under the doctrine of exhaustion of administrative remedies, a litigant cannot go to court without first pursuing his administrative remedies, otherwise his action is premature and his case is not ripe for judicial determination. A litigant should first exhaust the administrative remedies provided by law before seeking judicial intervention in order to give the administrative agency an opportunity to decide correctly the matter and prevent unnecessary and premature resort to the court. (Joson vs. Court of Appeals, G.R. No. 160652, February 13, 2006.)

15. What is the nature of the function to determine just compensation in expropriation cases?

ANS: The question on the judicial determination of just compensation has been settled in the case of Export Processing Zone Authority vs. Dulay (149 SCRA 305, 312 [1987]) wherein the court declared that the determinations of just compensation in eminent domain cases is a judicial function. Even as the department or legislature may make the initial determinations, the same cannot prevail over the court’s findings.(Desama vs. Gozun, G.R. No. 157882, March 30, 2006)

16. What are the four inviolable parameters of a party-list system?

ANS: To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) NO. 7941 mandate at least four inviolable parameters. These are:

1. the twenty percent allocation- the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives including those elected under the party-list

2. the two percent threshold- only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives

3. the three-seat rule- each qualified party regardless of the number of votes it actually obtained, is entitled to a maximum of three seats: that is, one “qualifying” and two additional seats

4. proportional representation- the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes” (Veterans Federation Party vs. COMELEC, October 6, 2000)

17. Who can ratify a treaty?

ANS: In our jurisdiction, the power to ratify is vested in the president and not, as commonly believed, in the legislature. The role of the senate is limited only to giving or withholding consent or concurrence to ratification. (Bayan v. Zamora, October 10, 2000)

18. Patrick is charged with illegal recruitment and estafa before the RTC of Manila. He jumped bail and managed to escape to America. Assume that there is an extradition treaty between the Philippines and America and it does not include illegal recruitment as on of the extraditable offenses. Upon surrender of Patrick by the US Government to the Philippines, Patrick protested that he could not be tried for illegal recruitment. Decide.

ANS: Under the principle of specialty in extradition, Patrick cannot be tried for illegal recruitment since this is not included in the list of extraditable offenses in the extradition treaty between the Philippines and the United States, unless the United States does not object to the trial of Patrick for illegal recruitment.

19. The Extradition Treaty between France and the Philippines is silent as to application with respect to crimes committed prior to its effectivity.

(a) Can France demand the extradition of A, a French national residing in the Philippines, for an offense committed in France prior to the effectivity of the treaty? Explain.

(b) Can A contest his extradition on the ground that it violates the ex post facto provision in the Philippine Constitution? Explain.

ANS: (a) In Clough vs. Strakesh, 109 Fed 330, it was held that an extradition treaty applies to crimes committed before its effectivity unless the extradition treaty expressly exempts them. Extradition does not define crimes but merely provides a means by which a state may obtain the return and punishment of persons charged with or convicted of having committed a crime who fled the jurisdiction of the state whose law has been violated. It is therefore immaterial whether at the time of the commission of the crime for which extradition is sought no treaty was in existence. If at the time of extradition is requested there is in force between the requesting and the requested state a treaty covering the offense on which the request is based, the treaty is applicable.

(b) No, as held in Wright vs. CA, 295 SCRA 341, the prohibition of ex post facto laws in Section 22 of Article III of the Constitution applies to penal laws only and does not apply to extradition treaties.

20. Discuss the calling-out power of the President.

ANS: Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power.

As much as I want to post things about my experiences for the past days, my assignments do not permit me to do so. I have to meet my deadlines and work harder. There are more important things to do now… But I miss posting blogs… I miss my site! I miss reading other people’s blog. Hope to finish everything soon.

Two weeks to go and classes begin… I’m so excited!

There is no difficulty that enough love will not conquer;

no disease that enough love will not heal;

no door that enough love will not open;

no gulf that enough love will not bridge;

no wall that enough love will not throw down;

no sin that enough love will not redeem...

It makes no difference how deeply seated may be the trouble;

how hopeless the outlook;

how muddled the tangle;

how great the mistake.

A sufficient realization of love will dissolve it all.

If only you could love enough you would bethe happiest and most powerful being in the world...

~Emmet Fox~

I saw my grades yesterday. Thanks to Kuya Ryan and he allowed me to see them! I’m satisfied with my grades except to my Criminal Law. I passed but I don’t think I deserve that grade. But I’m still thankful for I’m not among the casualties.


I only need .88 to make it again in the Dean’s List… (sigh) But then again, I cannot do anything about it. I just need to be thankful and be contented with what I got.

It was a tiring day for me yesterday. I attended the meeting of the UST Law Review and I was made to report on my assignments. Our editor-in-chief had set some deadlines for all of us. By June 10, Nessie and I should be finished with the editing of case digests for January to April cases… I also need to submit the outline and first draft of my article. I’m dead!!!! Until now, I’m not done with my assignments for the Acads Committee of the Bar Operations. I’m still revising the Constitutional Law part of the Political Law Golden Notes…. I have to work harder this time to meet the deadlines. I should finish everything before classes begin.

After the Law Review meeting, I met Kuya Christer and other student leaders for a courtesy call. We have a new regent in the name of Fr. Pinto. He was nice to everyone. I hope he’ll be nice all throughout his stay in the Faculty. Before the meeting started, Kuya Christer gave me a new assignment. Yes, another assignment which I should submit in two days time! He made me a mock bar examiner for Political Law and Labor Law for the mock bar examination of our Thomasian barristers. Together with other mock bar examiners, we need to prepare 20 questions and answers on the subjects assigned to us. Huhuhuhu… I’m really dead!!!

Someone texted me last Wednesday and informed me that I passed Criminal Law. Until now, I cannot believe him... I was surprised! It has been a mental torture for me everytime I think about it. I have spent so many sleepless nights thinking if I will still be a regular student. Thank God, I made it!!! God is really good!

Two weeks from now, classes will start. Next week is our enrolment. Honestly, I feel so excited. I miss reading law books. I miss our terror professors. I miss recitations... Above all, I miss my crush... Hehehehehe... I'm just so unfortunate that I will not anymore see him. He just graduated last March. I'm pretty sure he's reviewing for the Bar... I'll surely miss him!!!

Lord, grant me the serenity to accept the things I cannot change, to change those that I can and the wisdom to know their difference.

Lord, in this time of uncertainty, I offer everything to you. Direct me to the path where you want me to be. Provide me with enough strength and courage.

In you Lord, I trust and believe.

Thought of the Day:

We arrive precisely where we need to arrive because the hand of God always guides those who follow their path with faith.

PETRON CORPORATION v. MAYOR TOBIAS M. TIANGCO and
MUNICIPAL TREASURER MANUEL T. ENRIQUEZ of the
MUNIPALITY OF NAVOTAS, METRO MANILA

G.R. 158881, 16 April 2006, Second Division, (Tinga, J.)

While local government units are authorized to burden all such other class of goods with “taxes, fees and charges,” excepting excise taxes, a specific prohibition is imposed barring the levying of any other type of taxes with respect to petroleum products.

In accordance to the New Navotas Revenue Code or Ordinance 92-03, petitioner Petron Corporation was assessed a total tax of P6,259,087.62. Petron filed a letter protest arguing that it is exempt from paying local business taxes as provided by Article 232 (h) of the Implementing Rules of the Local Government Code.

The letter-protest was denied. A Complaint for Cancellation of Assessment was filed before the Regional Trial Court (RTC) of Malabon. The RTC dismissed the Complaint and required Petron to pay the assessed tax. A Motion for Reconsideration was filed but it was later denied by the court. Hence, the filing of this petition.

ISSUE:
Whether or not a local government unit is empowered under the Local Government Code (LGC) to impose business taxes on persons or entities engaged in the sale of petroleum

HELD:

Petition GRANTED.

Section 133(h) of the LGC reads as follows:

Sec. 133. Common Limitations on the Taxing Powers of Local Government Units. - Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and Barangays shall not extend to the levy of the following:

xxx

(h) Excise taxes on articles enumerated under the National Internal Revenue Code, as amended, and taxes, fees or charges on petroleum products;

Evidently, Section 133 prescribes the limitations on the capacity of local government units to exercise their taxing powers otherwise granted to them under the LGC. Apparently, paragraph (h) of the Section mentions two kinds of taxes which cannot be imposed by local government units, namely: “excise taxes on articles enumerated under the National Internal Revenue Code [(NIRC)], as amended;” and “taxes, fees or charges on petroleum products.”

The power of a municipality to impose business taxes is provided for in Section 143 of the LGC. Under the provision, a municipality is authorized to impose business taxes on a whole host of business activities. Suffice it to say, unless there is another provision of law which states otherwise, Section 143, broad in scope as it is, would undoubtedly cover the business of selling diesel fuels, or any other petroleum product for that matter.

Section 133(h) provides two kinds of taxes which cannot be imposed by local government units: “excise taxes on articles enumerated” under the NIRC, as amended; and “taxes, fees or charges on petroleum products.” There is no doubt that among the excise taxes on articles enumerated under the NIRC are those levied on petroleum products, per Section 148 of the NIRC.

The power of a municipality to impose business taxes derives from Section 143 of the Code that specifically enumerates several types of business on which it may impose taxes, including manufacturers, wholesalers, distributors, dealers of any article of commerce of whatever nature; those engaged in the export or commerce of essential commodities; retailers; contractors and other independent contractors; banks and financial institutions; and peddlers engaged in the sale of any merchandise or article of commerce. This obviously broad power is further supplemented by paragraph (h) of Section 143 which authorizes the sanggunian to impose taxes on any other businesses not otherwise specified under Section 143 which the sanggunian concerned may deem proper to tax.

This ability of local government units to impose business or other local taxes is ultimately rooted in the 1987 Constitution. Section 5, Article X assures that “[e]ach local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges,” though the power is “subject to such guidelines and limitations as the Congress may provide.” There is no doubt that following the 1987 Constitution and the Code, the fiscal autonomy of local government units has received greater affirmation than ever. Previous decisions that have been skeptical of the viability, if not the wisdom of reposing fiscal autonomy to local government units have fallen by the wayside.

Section 5(a) of the Code states that “[a]ny provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit.” But somewhat conversely, Section 5(b) then proceeds to assert that “[i]n case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government unit enacting it, and liberally in favor of the taxpayer.” And this latter qualification has to be respected as a constitutionally authorized limitation which Congress has seen fit to provide. Evidently, local fiscal autonomy should not necessarily translate into abject deference to the power of local government units to impose taxes.

Section 133(h) states that local government units “shall not extend to the levy of xxx taxes, fees or charges on petroleum products.” Respondents assert that the phrase “taxes, fees or charges on petroleum products” pertains to the imposition of direct or excise taxes on petroleum products, and not business taxes. If the phrase actually pertains to excise taxes, then it would be an exercise in utter redundancy, since the preceding phrase already prohibits the imposition of excise taxes on articles already subject to such taxes under the NIRC, such as petroleum products. There would be no sense on the part of the legislature to twice emphasize in the same sentence that excise taxes on petroleum products are beyond the pale of local government taxation.

The Court concedes that a tax on a business is distinct from a tax on the article itself, or for that matter, that a business tax is distinct from an excise tax. However, such distinction is immaterial insofar as the latter part of Section 133(h) is concerned, for the phrase “taxes, fees or charges on petroleum products” does not qualify the kind of taxes, fees or charges that could withstand the absolute prohibition imposed by the provision. It would have been a different matter had Congress, in crafting Section 133(h), barred “excise taxes” or “direct taxes,” or any category of taxes only, for then it would be understood that only such specified taxes on petroleum products could not be imposed under the prohibition. The absence of such a qualification leads to the conclusion that all sorts of taxes on petroleum products, including business taxes, are prohibited by Section 133(h). Where the law does not distinguish, we should not distinguish.

The language of Section 133(h) makes plain that the prohibition with respect to petroleum products extends not only to excise taxes thereon, but all “taxes, fees and charges.” The earlier reference in paragraph (h) to excise taxes comprehends a wider range of subjects of taxation: all articles already covered by excise taxation under the NIRC, such as alcohol products, tobacco products, mineral products, automobiles, and such non-essential goods as jewelry, goods made of precious metals, perfumes, and yachts and other vessels intended for pleasure or sports. In contrast, the later reference to “taxes, fees and charges” pertains only to one class of articles of the many subjects of excise taxes, specifically, “petroleum products”. While local government units are authorized to burden all such other class of goods with “taxes, fees and charges,” excepting excise taxes, a specific prohibition is imposed barring the levying of any other type of taxes with respect to petroleum products.

LOLITA EUGENIO v. PEOPLE OF THE PHILIPPINES

G.R. NO. 168163, 26 March 2008, First Division, (Corona, J.)

The irregularities attending Eugenio’s arrest and custodial investigation, assuming they did take place, do not work to nullify her conviction as the Supreme Court is neither the proper forum, nor this appeal the correct remedy, to raise this issue. Any irregularity attending the arrest of an accused, depriving the trial court of jurisdiction over her person, should be raised in a motion to quash at any time before entering her plea. Petitioner’s failure to timely raise this objection amounted to a waiver of such irregularity and resulted in her concomitant submission to the trial court’s jurisdiction over her person.

Petitioner Lolita Eugenio is a commissioned agent of respondent Alfredo Mangali in his check re-discounting and lending business. Eugenio persuaded Mangali to extend loans to various individuals. Two parcels of land, covered by TCT No. 171602 and TCT No. 92585, were offered as securities for the loans. Mangali thereafter extended loans with a condition that the borrowers shall execute Deed of Sale.

The loans lapsed and remained unpaid. Mangali inquired from the Register of Deeds the status of TCT Nos. 171602 and 92585. He found out that TCT No. 171602 had been cancelled in 1995 while TCT No. 92585 is not registered with the Register of Deeds. Mangali sought the help of the National Bureau of Investigation (NBI) and an entrapment operation was conducted. A Complaint for Estafa thru Falsification of Public Documents was filed against Eugenio. The Regional Trial Court (RTC) convicted Eugenio of one count of Estafa thru Falsification of Public Documents. The Court of Appeals affirmed the decision of the trial court. Hence, the filing of this petition. Eugenio avers that the prosecution failed to prove that their was conspiracy between her and the borrowers to defraud Mangali. She further avers that the entrapment operation was illegal due to some irregularities which attended her arrest.

ISSUE:

1. Whether or not the irregularities of the entrapment operation may nullify Eugenio’s conviction
2. Whether or not the prosecution proved the existence of conspiracy

HELD:

Petition GRANTED.

On the alleged irregularities attending Eugenio’s arrest and custodial investigation

Petitioner contends that her arrest following the NBI entrapment operation was illegal because it was “conducted by a division of the NBI which does not deal with estafa or fraud” and without the participation of the police. Petitioner also alleges that after she was arrested, she was neither informed of her constitutional right to counsel nor afforded her right to a phone call. Petitioner concludes that these irregularities tainted the NBI’s entrapment operation, rendering the same without any “probative value in determining whether or not a criminal act has been committed.”

Respondent does not contest petitioner’s claim on the alleged irregularities which attended her arrest. Nevertheless, such irregularities, assuming they did take place, do not work to nullify petitioner’s conviction as this Court is neither the proper forum, nor this appeal the correct remedy, to raise this issue. Any irregularity attending the arrest of an accused, depriving the trial court of jurisdiction over her person, should be raised in a motion to quash at any time before entering her plea. Petitioner’s failure to timely raise this objection amounted to a waiver of such irregularity and resulted in her concomitant submission to the trial court’s jurisdiction over her person. Indeed, not only did petitioner submit to such jurisdiction, she actively invoked it through her participation during the trial. Petitioner cannot now be heard to claim the contrary.

As for the failure of the NBI agents to inform petitioner of her right to counsel during custodial investigation, this right attains significance only if the person under investigation makes a confession in writing without aid of counsel which is then sought to be admitted against the accused during the trial. In such case, the tainted confession obtained in violation of Section 12(1), Article III of the Constitution is inadmissible in evidence against the accused.

The prosecution failed to prove conspiracy to render petitioner liable as principal to Estafa thru Falsification of Public Documents

Under Article 171 of the Revised Penal Code, Falsification is committed under any of the following modes:

(1) Counterfeiting or imitating any handwriting, signature or rubric;
(2) Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
(3) Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;
(4) Making untruthful statements in a narration of facts;
(5) Altering true dates;
(6) Making any alteration or intercalation in a genuine document which changes its meaning;
(7) Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or
(8) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book.

The trial court found petitioner guilty of Estafa thru Falsification of Public Documents (which the Court of Appeals sustained) for petitioner’s “principal role” in the loan transactions between Mangali, on the one hand, and Saquitan and Ty, on the other hand. In further pinning liability on petitioner for her role in the alleged falsification of TCT No. 92585, the trial court, for lack of proof of petitioner’s participation in falsifying such document, relied on the disputable legal presumption that the possessor of a falsified document who makes use of such to her advantage is presumed to be the author of the falsification. In short, petitioner’s conviction below rested on an implied conspiracy with her co-accused to swindle Mangali, buttressed, as to one count, by a reliance on a disputable presumption of culpability.

We reverse.

True, conspiracy need not be proved by direct evidence as the same can be inferred from the concerted acts of the accused. However, this does not dispense with the requirement that conspiracy, like the felony itself, must be proved beyond reasonable doubt. Thus, the presence of a reasonable doubt as to the existence of conspiracy suffices to negate not only the participation of the accused in the commission of the offense as principal but also, in the absence of proof implicating the accused as accessory or accomplice, the criminal liability of the accused.

Taking into account admitted facts and unrebutted claims, her participation in the events leading to her arrest is cast in an entirely new light raising reasonable doubt as to her culpability. These facts and unrefuted claims are: (1) petitioner works for Mangali, on commission basis, in the latter’s check re-discounting and lending businesses and (2) the Civil Register of Manila certified as true copy the photocopy of TCT No. 171602 that Saquitan gave petitioner.

As Mangali’s agent, petitioner is obliged to bring prospective borrowers to Mangali; otherwise, she will not earn commissions. This also explains why she was present in all the occasions Mangali met Saquitan and Ty – she was pecuniarily interested in seeing to it that the deals she brokered were consummated to enable her to receive commission from Mangali.

On petitioner’s disclosure to Mangali that TCT No. 171602 is registered with the Register of Deeds of Manila, petitioner merely relied on the certification by the Register of Deeds of Manila that the photocopy of TCT No. 171602 she brought with her was a true copy of the title on file in that office. The prosecution did not rebut this.

In sum, we hold that the lower courts’ rulings are based on a misapprehension of facts justifying reversal on review. Indeed, when, as here, the circumstances surrounding the alleged commission of crimes are capable of two inferences, one favoring the innocence of the accused and the other her guilt, the inference for her innocence must prevail, consistent with the Constitutional presumption of her innocence.

PNB-REPUBLIC BANK v. SPOUSES JOSE and SALVACION CORDOVA

G.R. No. 169314, 14 March 2008, Third Division, (Nachura, J.)

An essential and logical implication of Section 9, Rule 41 of the Rules of Court is that the filing of a second notice of appeal from the modified decision is a superfluity, if not a useless ceremony. It, therefore, matters no longer whether that second notice is timely filed or not.

The Regional Trial Court (RTC) of Manila rendered its decision dismissing the Complaint filed by Petitioner PNB-Republic Bank for the rescission of its Contract of Lease with Respondents Spouses Jose and Salvacion Cordova. The Court, however, granted the counterclaim of Spouses Cordova.

Unsatisfied with the decision, PNB timely filed its first notice of appeal while Spouses Cordova filed their Motion for Reconsideration. The RTC modified its decision and increased the amount of damages awarded to Spouses Cordova. A copy of the modified decision was received by PNB on August 07, 2002 and on August 22, 2002, PNB filed a Motion for Reconsideration. The RTC denied the Motion on September 30 and a copy of the said order was received by PNB on October 14, 2002. PNB filed its second notice of appeal on October 23, 2002, which was later dismissed by the court.

PNB re-filed its appeal before the Court of Appeals (CA). Spouses Cordova aver that the appeal should be dismissed on the ground that petitioner failed to file its appeal on time. The appellate court dismissed the petition. It held that the first notice of appeal of PNB is invalid and ineffective due to the modified decision of the RTC. It further ruled that the second notice of appeal was not perfected on time.

ISSUE:

Whether or not the Court of Appeals erred in dismissing the case and in declaring that the first notice of appeal is ineffective and invalid while the second appeal was not perfected on time

HELD:

Petition GRANTED.

Petitioner’s appeal is deemed perfected “as to [it]” when it timely filed its first notice of appeal, following Section 9, Rule 41 of the Rules of Court. Incidentally, this perfected appeal is not docketed with the CA, because the trial court, which was still to resolve respondents’ motion for reconsideration, had not yet transmitted the records of the case to the appellate court. Incumbent, nonetheless, on the part of the RTC is the elevation of the records after a resolution of the merits of respondents’ motion.

Its appeal having been perfected, petitioner did not need to file a second notice of appeal even if the trial court granted, as it did, the other party’s motion for reconsideration and modified the decision to increase the monetary award.

An essential and logical implication of the said rule is that the filing of a second notice of appeal from the modified decision is a superfluity, if not a useless ceremony. It, therefore, matters no longer whether that second notice is timely filed or not. Hence, in this case, petitioner’s filing of a belated second notice of appeal does not affect or foreclose its already perfected appeal.

JUANITO CHAN v. SECRETARY OF JUSTICE et. al.

G.R. No. 147065, 14 March 2008, Third Division, (Nachura, J.)

In Crespo, the Court laid down the rule that once an Information is filed in court, any disposition of the case rests on the sound discretion of the court. In subsequent cases, the Court clarified that Crespo does not bar the Justice Secretary from reviewing the findings of the investigating prosecutor in the exercise of his power of control over his subordinates. The Justice Secretary is merely advised, as far as practicable, to refrain from entertaining a petition for review of the prosecutor’s finding when the Information is already filed in court. In other words, the power or authority of the Justice Secretary to review the prosecutor’s findings subsists even after the Information is filed in court. The court, however, is not bound by the Resolution of the Justice Secretary, but must evaluate it before proceeding with the trial. While the ruling of the Justice Secretary is persuasive, it is not binding on courts.

An Information for illegal selling of prohibited drugs was filed against Petitioner Juanito Chan before the Regional Trial Court (RTC) of Quezon City. Chan, on the other hand, filed a Petition for Review with the Secretary of Justice. The petition was dismissed on the ground that there is no reversible error on the findings of the State Prosecutor. A Petition for Certiorari was thereafter filed before the Court of Appeals (CA). The appellate court dismissed the petition in accordance with the doctrine laid down in Crespo v. Mogul which provides that once a case or information is filed in court, any disposition of the case rests on the discretion of the court. It further ruled that a Petition for Certiorari cannot be availed for Chan has other existing remedies such as a Motion to Quash or Dismiss.

A Petition for Certiorari was then filed with the Supreme Court. Chan contends that the case of Crespo has already been superseded by Allado v. Diokno. He further contends that a Petition for Certiorari was his speedy and most adequate remedy.

ISSUES:

1. Whether or not the Court of Appeals erred in applying the doctrine laid down in Crespo v. Mogul
2. Whether or not a Petition for Certiorari can be availed despite the existence of other remedies

HELD:

Petition DISMISSED.

The case of Crespo still subsists

Contrary to petitioner’s view, Crespo subsists and was not superseded by Allado.

Allado, which was punctuated by inordinate eagerness in the gathering of evidence and in the preliminary investigation, serves as an exception and may not be invoked unless similar circumstances are clearly shown to exist. No such circumstances were established in the present case.

In Crespo, the Court laid down the rule that once an Information is filed in court, any disposition of the case rests on the sound discretion of the court. In subsequent cases, the Court clarified that Crespo does not bar the Justice Secretary from reviewing the findings of the investigating prosecutor in the exercise of his power of control over his subordinates. The Justice Secretary is merely advised, as far as practicable, to refrain from entertaining a petition for review of the prosecutor’s finding when the Information is already filed in court. In other words, the power or authority of the Justice Secretary to review the prosecutor’s findings subsists even after the Information is filed in court. The court, however, is not bound by the Resolution of the Justice Secretary, but must evaluate it before proceeding with the trial. While the ruling of the Justice Secretary is persuasive, it is not binding on courts.

Albeit the findings of the Justice Secretary are not absolute and are subject to judicial review, the Court generally adheres to the policy of non-interference in the conduct of preliminary investigations, particularly when the said findings are well-supported by the facts as established by the evidence on record. Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer’s finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor. Simply stated, findings of the Secretary of Justice are not subject to review, unless made with grave abuse of discretion.

In dismissing the petition for certiorari, the CA primarily anchored its decision on Crespo, ratiocinating that it is without authority to restrain the lower court from proceeding with the case since the latter had already assumed jurisdiction.

A Petition for Certiorari may still be availed of even if there is available remedy

The CA, likewise, opined that the filing of the petition for certiorari was improper since petitioner still had an available remedy, that is, to file a motion to dismiss or to quash the Information with the trial court. We do not agree. A petition for certiorari may still be availed of even if there is an available remedy, when such remedy does not appear to be plain, speedy, and adequate in the ordinary course of law.

AMOS P. FRANCIA JR., et. al. v. MUNICIPALITY OF MERCAUAYAN

G.R. No. 170432, 24 March 2008, First Division, (Corona, J.)

Before a local government unit may enter into the possession of the property sought to be expropriated, it must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit with the said court at least 15% of the property's fair market value based on its current tax declaration. The law does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession.

A Complaint for expropriation was filed by respondent Municipality of Meycauayan, Bulacan against the property of petitioners Amos Francia, Cecilia Francia and Benjamin Francia. The Municipality of Meycauayan seeks to use the said property in order to establish a common public terminal for all public utility vehicles. The Regional Trial Court (RTC) ruled that the expropriation was for public purpose and issued an Order of Expropriation.

On appeal, the Court of Appeals partially granted the petition. It nullified the Order of Expropriation except with regard to the writ of possession. It upheld the decision of the RTC that in issuance of writ of possession, prior determination of the existence of public purpose is necessary.

ISSUE:

Whether or not prior determination of existence of public purpose is necessary before the issuance of writ of possession

HELD:

Petition denied.

Section 19 of Republic Act 7160 provides:

Section 19. Eminent Domain. ― A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws; Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and that such offer was not accepted; Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated; Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

Before a local government unit may enter into the possession of the property sought to be expropriated, it must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit with the said court at least 15% of the property's fair market value based on its current tax declaration. The law does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession.