2006 Bar Legal Ethics

8/3/2019 2006 Bar Legal Ethics

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LEGAL ETHICS

Multiple choice. Choose the correct answer. Write the letter corresponding to your answer.

(1.) Which of the following need not be verified?

a) Petition for Certiorari;b) Interpleader;c) Petition for Habeas Corpus;d) Answer with compulsory counterclaim;e) All pleadings under the Rules on Summary Procedure.(2%)

(2.) Which of the following statements is false?

a) All administrative cases against Justices of appellate courts and judges of lower courts fall exclusively within the jurisdiction of the Supreme Court.

b) Administrative cases against erring Justices of the Court of Appeals and Sandiganbayan, judges, and lawyers in the government service are not automatically treated as disbarment cases.

c) The IBP Board of Governors may, motu proprio, or upon referral by the SupremeCourt or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring lawyers including those in thegovernment service.

d) The filing of an administrative case against the judge is not a ground for disqualification/inhibition.

e) Trial courts retain jurisdiction over the criminal aspect of offenses committed by justices of appellate courts and judges of lower courts.

(2%)

(3.) On which of the following is a lawyer proscribed from testifying as a witness in a case he is handling for a client:

a) On the mailing of documents;b) On the authentication or custody of any instrument;c) On the theory of the case;

d) On substantial matters in cases where his testimony is essential to the endsof justice.(2%)

II.

Mike Adelantado, an aspiring lawyer, disclosed in his petition to take the 2003Bar Examinations that there were two civil cases pending against him for nullification of contract and damages. He was thus allowed to conditionally take the bar, and subsequently placed third in the said exams.

In 2004, after the two civil cases had been resolved, Mike Adelantado filed his

petition to take the Lawyers Oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, however, had received two anonymous letters: the first alleged that at the time Mike Adelantado filed his petition to


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take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of Batas Pambansa (B.P.) Bilang 22; the other letter alleged that Mike Adelantado, as Sangguniang Kabataan (SK) Chairperson, had beensigning the attendance sheets of (SK) meetings as Atty. Mike Adelantado.

a) Having passed the bar, can Mike Adelantado already use the appellation attorney? Explain your answer. (3%)

b) Should Mike Adelantado be allowed to take his oath as a lawyer and sign the Roll of Attorneys? Explain your answer. (3%)

III.

Atty. Kuripot was one of Town Banks valued clients. In recognition of his loyaltyto the bank, he was issued a gold credit card with a credit limit of P250,000.00. After two months, Atty. Kuripot exceeded his credit limit, and refused to paythe monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot.

In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bankwas personal in nature and had no relation to his being a lawyer.

a) Is Atty. Kuripot correct? Explain your answer. (3%)

b) Explain whether Atty. Kuripot should be held administratively liable for hisrefusal to settle his credit card bill. (3%)

IV.

You had just taken your oath as a lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. Sheexplained that a lot of students lose their Identification Cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their Identification Cards every month. However, the secretary wants you to give herone-half of your earnings therefrom.

Will you agree to the arrangement? Explain. (5%)

V.

Judge Horacio would usually go to the cockpits on Saturdays for relaxation, as the owner of the cockpit is a friend of his. He also goes to the casino once a week to accompany his wife who loves to play the slot machines. Because of this, Judge Horacio was administratively charged. When asked to explain, he said that although he goes to these places, he only watches and does not place any bets.

Is his explanation tenable? Explain. (5%)

VI.

A business man is looking for a new retainer. He approached you and asked for yo

ur schedule of fees or charges. He informed you of the professional fees he is presently paying his retainer, which is actually lower than your rates. He said that if your rates are lower, he would engage your services.


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Will you lower your rates in order to get the client? Explain. (5%)

VII.

(1.) Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a m

otion to disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the Phi Nu Phi Fraternity. Judge Segotier denied the motion.

Comment on his ruling. (5%)

(2.) In an intestate proceeding, a petition for the issuance of letters of administration in favor of a Regional Trial Court Judge was filed by one of the heirs. Another heir opposed the petition on the ground that the judge is disqualifiedto become an administrator of the estate as he is the brother-in-law of the deceased.

Rule on the petition. (5%)

VIII.

Due to the number of cases handled by Atty. Cesar, he failed to file a notice ofchange of address with the Court of Appeals. Hence, he was not able to file anappellants brief and consequently, the case was dismissed. Aggrieved, Atty. Cesarfiled a motion for reconsideration of the resolution dismissing the appeal andto set aside the entry of judgment on the ground that he already indicated in his Urgent Motion for Extension of Time to File Appeal Brief his new address and that his failure to file a notice of change of address is an excusable negligence.

Will the motion prosper? Explain. (5%)

IX.

Darius is charged with the crime of murder. He sought Atty. Francias help and assured the latter that he did not commit the crime. Atty. Francia agreed to represent him in court. During the trial, the prosecution presented several witnesseswhose testimonies convinced Atty. Francia that her client is guilty. She confronted his client who eventually admitted that he indeed committed the crime. In view of his admission, Atty. Francia decided to withdraw from the case.

Should Atty. Francia be allowed to do so? Explain. (5%)

X.

Atty. Yabang was suspended as a member of the Bar for a period of one (1) year.During the period of suspension, he was permitted by his law firm to continue working in their office, drafting and preparing pleadings and other legal documents but was not allowed to come into direct contact with the firms clients. Atty. Yabang was subsequently sued for illegal practice of law.

Would the case prosper? Explain. (5%)

XI.


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Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a civil case against Kapamilya Corporation whose legal counsel is XXX lawfirm. Atty. Japzon claims that she never handled the case of Kapamilya Corporation when she was still with XXX law firm.

Is there a conflict of interest? Explain. (5%)

XII.

Pending before the sala of Judge Magbag is the case of CDG versus JQT. The legalcounsel of JQT is Atty. Ocsing who happens to be the brother of Atty. Ferreras,a friend of Judge Magbag. While the case was still being heard, Atty. Ferrerasand his wife celebrated their wedding anniversary. They invited their friends and family to a dinner party at their house in Forbes Park. Judge Magbag attendedthe party and was seen conversing with Atty. Ocsing while they were eating at the same table.

Comment on the propriety of Judge Magbags act. (5%)

XIII.

Gerry Cruz is the owner of a 1,000-square meter lot covered by Transfer Certificate of Title No. 12345 located in Sampaloc, Metro Manila. Gerry decided to sellthe property but did not have the time to look for a buyer. He then designated his brother, Jon, to look for a buyer and negotiate the sale. Jon met Angelo Santos who expressed his interest to buy the lot. Angelo agreed to pay P1 Million for the property on September 26, 2005.

a) Draft the Special Power of Attorney to be executed by Gerry Cruz, as principal, in favor of his brother Jon, as agent, authorizing the latter to sell the property in favor of Angelo Santos. (7%)

b) Draft the Deed of Sale of Real Property. (7%)

XIV. Draft a withdrawal of counsel without conformity of client. (6%)

XV. Draft a Notice of Appeal. (6%)

XVI. Draft a Certification of Non-Forum Shopping. (6%)


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CIVIL LAW DIGEST

July 4, 2007; J. Chico-Nazareo, Ponente; Third Division)

Facts:

Eulalia Raymundo (Eulalia) was engaged in the business of buying and selling large cattle for which she employed biyaheros whose task involved the procuring of large cattle with the financial capital provided by petitioner and delivering theprocured cattle to her for further disposal. In order to secure the financial capital she advanced for the biyaheros, Eulalia required them to surrender the Transfer Certificates of Title (TCT) of their properties and to execute the corresponding Deeds of Sale in her favor.

Dominador Bandong (Domeng), who had been working for petitioner three decades, was not required by Eulalia to post any security in the performance of his work.However, she discovered that Domeng incurred shortage in his cattle procurement

operation in the amount of P70,000.00. Domeng and his wife Rosalia then executeda deed of sale in favor of Eulalia a registered parcel of land. On the strengthof the aforesaid deed, the subject property was registered in the names of Eulalia and her husband Carlos. The subject property was thereafter sold by SpousesRaymundo to their grandniece Jocelyn Buenaobra. After the TCT of the subject property was transferred to the name of Jocelyn and husband Angelito, they instituted an action for ejectment against the Spouses Bandong before the MeTC. The lower court ruled in favor of the Spouses Buenaobra which, on appeal, was affirmed in toto by the RTC and subsequently, by the Court of Appeals.

To assert their right to the subject property, the Spouses Bandong instituted anaction for annulment of sale before the RTC against Eulalia and Jocelyn alleging that there was no sale intended but only equitable mortgage for the purpose of

securing the shortage incurred by Domeng in the amount of P70,000 while employed as biyahero by Eulalia. The RTC rendered a decision in favor of Eulalia and Jocelyn by declaring that the deed of sale valid and, consequently, the subsequent sale between Eulalia and Jocelyn was also lawful. On appeal, the CA reversed theRTC Decision and found that the transaction entered into by Domeng and Eulalia was not one of sale but an equitable mortgage. The Court of Appeals denied the Motion for Reconsideration filed by Spouses Raymundo and Buenaobra. Hence, this petition.

Issue: Whether the deed of sale between Domeng and Eulalia is a contract of saleor an equitable mortgage.Ruling:

An equitable mortgage is one that - although lacking in some formality, forms and words, or other requisites demanded by a statute - nevertheless reveals the intention of the parties to charge a real property as security for a debt and contains nothing impossible or contrary to law. The instances when a contract - regardless of its nomenclature - may be presumed to be an equitable mortgage are enumerated under Art. 1602 of the New Civil Code. In executing the said deed of sale, Domeng and Eulalia never intended the transfer of ownership of the subject property but to burden the same with an encumbrance to secure the indebtedness incurred by Domeng on the occasion of his employment with Eulalia. The agreement between Dominador and Eulalia was not avoided in its entirety so as to prevent itfrom producing any legal effect at all. Instead, the said transaction is an equitable mortgage, thereby merely altering the relationship of the parties from sel

ler and buyer, to mortgagor and mortgagee, while the subject property is not transferred but subjected to a lien in favor of the latter. To reiterate, the existence of any one of the conditions under Article 1602 of the New Civil Code, not


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a concurrence, or an overwhelming number of such circumstances, suffices to giverise to the presumption that the contract is an equitable mortgage.

Van Dorn vs. Romillo Jr., 139 SCRA 139, October 8, 1985, J. Teehankee

Facts: Alice Reyes, a Filipina, married Richard Upton, an American, in Hongkongin 1972. They established residence in the Philippines and had two children. In1982, the wife sued for divorce in Nevada, U.S.A., on the ground of incompatibility. She later married Theodore Van Dorn in Nevada in 1983. Upton sued her before RTC, Branch LXV in Pasay City asking that she be ordered to render an accounting of her business, which Upton alleged to be conjugal property. He also prayedthat he be declared with a right to manage the conjugal property. The defendantwife moved to dismiss the complaint on the ground that the cause of action was barred by a previous judgment in the divorce proceedings wherein he had acknowledged that the couple had no community property.

Issues: 1) Is absolute divorce decree granted by U.S. court, between Filipina wi

fe and American husband held binding upon the latter? 2) Is the American husbandbarred by his own representation before the Nevada court from asserting his right on alleged conjugal property?

Ruling: The pivotal fact in this case is the Nevada Divorce of the parties. There can be no question as to the validity of that Nevada divorce in any states ofthe U.S. The decree is binding on Upton as an American citizen. Hence, he cannotsue petitioner, as her husband, in any state of the United States. It is true that owing to the nationality principle under article 15 of the civil code, onlyPhilippine nationals are covered by the policy against absolute divorce abroad,which maybe recognized in the Philippines, provided they are valid according totheir national law. In this case, the divorce in Nevada released Upton from themarriage from the standards of American law. Thus, pursuant to his national law,

he is no longer the husband of the petitioner. He would have no standing to suein the case as petitioner husband entitled to exercise control over conjugal assets. He is also estopped by his own representation before the Nevada court fromasserting his right over the alleged conjugal property. He should not continueto be one of her heirs with possible rights to conjugal property.

CRIMINAL LAW DIGEST

Ladlad vs. Velasco, et al. (G.R. Nos. 172070-72); Maza vs. Sec. Gonzales (G.R. Nos. 172074-76); Beltran vs. People of the Philippines (G.R. No. 175013) - J. Carpio; 1 June 2007

Facts:

Following the issuance by PGMA of Presidential Proclamation No. 1017 on 24 February 2006 declaring a State of National Emergency, Beltran was arrested without a warrant. Beltran was subjected to an inquest for Inciting to Sedition under Article 142 of the RPC based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006. The inquest was based on the joint affidavit of Beltrans arresting officers who claimed to have been present at the rally. When theauthorities brought back Beltran to Camp Crame, he was subjected to a second inquest, this time for Rebellion, on the ground that Beltran is purportedly one ofthe leaders and promoters of an alleged foiled plot to overthrow the Arroyo government. A panel of State prosecutors from the DOJ conducted this second inquest.

Based on two letters, the DOJ sent subpoenas to Maza et al., requiring them to appear at the DOJ to get copies of the complaint and its attachment. Prior to their


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receipt of the subpoenas, petitioners had quartered themselves inside the Houseof Representatives building for fear of being subjected to warrantless arrest.During the preliminary investigation, the counsel for the CIDG presented a masked man who claimed to be an eyewitness against petitioners. Fuentes subscribed tohis affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members present during the proceedings.

Issue: Whether or not the inquest proceeding against Beltran for Rebellion was valid and whether there is probable cause to indict him for Rebellion.

For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, Beltrans inquest is void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus:Quote:Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;(b) When an offense has just been committed and he has probable cause to believebased on personal knowledge of facts or circumstances that the person to be arrested has committed it; andx x x xIn cases falling under paragraphs (a) and (b) above, the person arrested withouta warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.The joint affidavit of Beltrans arresting officers states that the officers arrested Beltran, without a warrant, for Inciting to Sedition, and not for Rebellion.When another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquestvoid. None of Beltrans arresting officers saw Beltran commit, in their presence,

the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probablecause to believe that he had committed Rebellion. What these arresting officersalleged in their affidavit is that they saw and heard Beltran make an allegedlyseditious speech on 24 February 2006.

Under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113. If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides:Quote:Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall:a) recommend the release of the person arrested or detained;b) note down the disposition on the referral document;c) prepare a brief memorandum indicating the reasons for the action taken; andd) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action.Moreover, there is no probable cause to indict Beltran for rebellion. Probable cause is the existence of such facts and circumstances as would excite the beliefin a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. The elements of Rebellion under Article 134 of the RPC are:Quote:1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or o


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ther armed forces; or(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. None ofthe affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in fact merely charges Beltran for conspiring and confeder

ating with others in forming a tactical alliance to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.

Issue: Whether or not respondent prosecutors should be enjoined from continuingwith the prosecution of the case against Masa et al.

The preliminary investigation was tainted With rrregularities. The SC dones not,as a rule, enjoin the prosecution of offenses. However, such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use ofthe strong arm of the law in an oppressive and vindictive manner or (b) to afford adequate protection to constitutional rights.

The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure. Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, so that the constitutional right to liberty of a potential accused can be protected from any material damage, respondent prosecutors nonchalantly disregarded it. Respondent prosecutorsfailed to comply with Section 3(a) of Rule 112 which provides that the complaint(which, with its attachment, must be of such number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribedand sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the

CIDG, PNP as complaints and accepted the affidavits attached to the letters eventhough some of them were notarized by a notary public without any showing thata prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receivingthe complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall issue a subpoena to the respondents. Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office to secure copies of the complaints and its attachments. During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to petitioners or theircounsels but to members of the media who covered the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was only four days later that petitioners received the complete copy of the attachments to the CIDG letters.

These uncontroverted facts belie the allegation that the preliminary investigation was done in accordance with the Revised Rules o[f] Criminal Procedure. Indeed,by peremptorily issuing the subpoenas to petitioners, tolerating the complainantsantics during the investigation, and distributing copies of a witness affidavitto members of the media knowing that petitioners have not had the opportunity toexamine the charges against them, respondent prosecutors not only trivialized t

he investigation but also lent credence to petitioners claim that the entire proceeding was a sham.


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The Prosecutors were not impartial. Respondent Secretary of Justice, who exercises supervision and control over the panel of prosecutors, stated in an interviewon 13 March 2006, the day of the preliminary investigation, that, We [the DOJ] will just declare probable cause, then its up to the [C]ourt to decide x x x. Petitioners raised this issue in their petition, but respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable cause.

August 18, 2006; J. Calledo Sr.; First Division

Facts :

On October 10, 2002, minor Frank Bansales was charged for the murder of his teacher Yvonne Declarador. The crime was committed with the attendance of the qualifying aggravating circumstances of evident premeditation and abuse of superior strength considering that the attack was made by the accused using a long knife which the latter carried along with him from his house to the school against his l

ady teacher who was unarmed and defenseless at the time of the murder.

RTC rendered judgment on May 20, 2003 finding Bansales guilty of murder, a crimewhich carries an imposable penalty of reclusion perpetua to death under Article248 of the RPC, as amended by R.A. 7659. However, the court suspended the sentence of the accused and ordered his commitment to rehabilitation center pursuantto provision of P.D. 603.

Surviving spouse Rennie Declarador filed a petition for certiorari under Rule 65of the Rules of Court assailing that portion of the decision of the trial courtsdecision suspending the sentence of the accused and committing him to the rehabilitation center. She claimed that under Article 192 of P.D. No. 603, as well asA.M. No. 02-1-18-SC (otherwise known as the Rule on Juveniles in Conflict with

the Law), the benefit of a suspended sentence does not apply to a juvenile who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, hence, the accused is disqualified from availing the benefits of a suspended sentence.

Issues :

1) Is Bansales qualified from availing the benefits of a suspended sentence?

2) Does R.A. 9344 amend Art. 192 of P.D. 603?

Ruling :

1) No. A person who committed an offense punishable by death, life imprisonmentor reclusion perpetua is disqualified from availing the benefits of a suspendedsentence. Punishable is defined as deserving of, or capable, or liable to punishment; liable to be punished; may be punished; liable to punishment. The term punishable refers to the possible, not actual sentence. It is concerned with penalty which may be, and not which is imposed after trial. The disqualification is based on the nature of the crime charged and the imposable penalty therefor, and not onthe penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile

2) R. A. 9344 merely amended Article 192 of P.D. No. 603, as amended by A.M. No.

02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenileeven if he is already 18 years of age or more at the time of the pronouncementof his guilt. The other disqualifications in Article 192 of P.D. No. 603, as ame


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nded, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain theother disqualifications as provided in Article 192 of P.D. No. 603, as amended,and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convictedof a crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from having theirsentences suspended.

Case law has it that statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposedto form part of one uniform system; later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislations on the subject and to haveenacted the new act with reference thereto. Statutes in pari materia should be construed together to attain the purpose of an expressed national policy.

This is an en banc decision promulgated on June 21, 2007 (Justice Tinga, Ponente). In the words of Justice Tinga: "This case aims for prime space in the firmame

nt of our criminal law jurisprudence." Petitioner effectively concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. As far as can be told, the lasttime this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.

Facts:

The accused were sighted outside the Super Sale Club, a supermarket in SM-NorthEDSA, by a security guard who was then manning his post at the open parking area. One of the accused was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the well-kn

own Tide brand. Petitioner unloaded these cases in an open parking space, where the other accused was waiting. The other accused then returned inside the supermarket and therafter emerged with more cartons of Tide Ultramatic.

The accusd then left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where the other accused was waiting. Afterthe accused boarded the taxi with the goods, however, the guard stopped the taxias it was leaving the open parking area. When the guard asked for a receipt ofthe merchandise, the accused reacted by fleeing on foot, but were apprehended. The accused were charged with the crime of theft.

After trial, both accused were convicted of consummated theft, a convicttion sustained by the Court of Appeals. One of the accused thereafter brought the matteron appeal to the Supreme Court, primarily on the ground that the conviction bemodified to only of frustrated - not consummated - theft.

Issue: Whether or not the accused is guilty only of frustrated theft.Ruling: The accused is guilty of consummated theft. There's no such thing as "frustrated" theft.Ratio:

Article 6 of the Revised Penal Code defines the three stages of crimes, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It isfrustrated when the offender performs all the acts of execution which would prod

uce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by overt acts,


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and does not perform all the acts of execution which should produce the felonyby reason of some cause or accident other than his own spontaneous desistance.

Each felony under the RPC has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. After that point has been breached, the subjecti

ve phase ends and the objective phase begins. It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted. On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony,the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the RPC are generally enumerated in the codeitself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that co

nstitute the felony under the RPC.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felonyitself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the RPC, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

The elements of the crime of theft as provided for in Article 308 of the RPC are

:Quote:(1) that there be taking of personal property;(2) that said property belongs to another;(3) that the taking be done with intent to gain;(4) that the taking be done without the consent of the owner; and(5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mensrea or actus reus of the felony. Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considersonly the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced?There would be all but certain unanimity in the position that theft is producedwhen there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution fortheft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution.

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there could be no


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true taking until the actor obtains such degree of control over the stolen item.

But even if this were correct, the effect would be to downgrade the crime to itsattempted, and not frustrated stage, for it would mean that not all the acts ofexecution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our conce

rn now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent fora considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even ifhe has no opportunity to dispose of the same. Insofar as we consider the presentquestion, unlawful taking is most material in this respect. Unlawful taking, whic

h is the deprivation of ones personal property, is the element which produces thefelony in its consummated stage. At the same time, without unlawful taking as a

n act of execution, the offense could only be attempted theft, if at all. With these considerations, we can only conclude that under Article 308 of the RPC, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

(That's quite long for a digest. You may want to read on for information purposes)

The U.S. v. Adiao decision

A customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Cu

stom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction. Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present. In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain.

It is clear from the facts of Adiao itself, and the three (3) Spanish decisionscited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was inthe 1882 decision; and before the thief had been able to spirit the item stolenfrom the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, asit was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another.

The People v. Sobrevilla decision

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla

, where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same tim


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e shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman. In rejecting the contention that only frustrated theft was established, the Court simply said,without further comment or elaboration: "We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determinesthe crime of theft. If the pocket-book was afterwards recovered, such recoverydoes not affect the [accuseds] criminal liability, which arose from the [accused]

having succeeded in taking the pocket-book.

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeedin obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

The Dio decision

In arguing that he should only be convicted of frustrated theft, petitioner cites two decisions rendered many years ago by the Court of Appeals: People v. Dio and People v. Flores.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload atruckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching acheckpoint of the Military Police, he was stopped by an M.P. who inspected thetruck and found therein three boxes of army rifles. The accused later contendedthat he had been stopped by four men who had loaded the boxes with the agreementthat they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court ofAppeals modified the conviction, holding instead that only frustrated theft hadbeen committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it wouldbe allowed to pass through the check point without further investigation or checking. This point was deemed material and indicative that the theft had not beenfully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.

Dio thus laid down the theory that the ability of the actor to freely dispose ofthe items stolen at the time of apprehension is determinative as to whether thetheft is consummated or frustrated.

The Flores decision

This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio]. Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty seavan to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea v

an had actually contained other merchandise as well. The accused was prosecutedfor theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative


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that he was guilty only of attempted theft, but the appellate court pointed outthat there was no intervening act of spontaneous desistance on the part of theaccused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, andnot consummated, theft.

The Empelis v. IAC decision

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC. As narrated inEmpelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Artic

le 310 of the Revised Penal Code, but further held that the accused were guiltyonly of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theftwas consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:Quote:However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.Empelis held that the crime was only frustrated because the actors were not ableto perform all the acts of execution which should have produced the felon as a c

onsequence. However, per Article 6 of the RPC, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-performance was by reason of some causeor accident other than spontaneous desistance. Empelis concludes that the crimewas frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the RPC, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

No legal reference or citation was offered for this averment, whether Dio, Floresor the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis. For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority ontheft.

SC Conclusion:

We can only conclude that under Article 308 of the RPC, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Florescan convince us otherwise. Both fail to consider that once the offenders thereinobtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the

offenders to freely dispose of the stolen property does not negate the fact thatthe owners have already been deprived of their right to possession upon the completion of the taking.


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Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any waydeterminative of whether the crime of theft has been produced. Dio itself did not

rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. Thesecases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. Thesame holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptanceof the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the RPC does not detract

from the correctness of this conclusion. It will take considerable amendments to our RPC in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent.

LEGAL ETHICS DIGEST

(June 7, 2007; J. Garcia, Ponente; Special Third Division)

Facts:

By reason of a verified Petition (alleging acts of deceit, malpractice, grave misconduct, grossly immoral conduct and violation of oath as a lawyer) by his estranged wife, Atty. Justo J. Paras was suspended from the practice of law for a period of one (1) year, with a warning that commission of the same or similar offense in the future will result in the imposition of a more severe penalty. Duringthe pendency of Atty. Paras motion for reconsideration, complainant-movant filedwith the SC a Motion for Contempt and/or Disbarment, alleging thereunder, interalia, that Atty. Paras violated the suspension order earlier issued by the Court with his continued practice of law.

In a resolution, the SC denied Atty. Paras motion for reconsideration of his suspension, and, at the same time, directed him to file his comment on the motion for contempt and/or disbarment. He failed to file a comment.

Issue: Whether or not Atty. Paras should be disbarred for violating the one-yearsuspension order?Ruling:

There is no sufficient basis to support petitioner-movants allegation that Atty.Paras violated the Courts suspension order, what with the fact that Atty. Paras himself took the initiative to inform the lower courts of his one-year suspensionfrom law practice. The purpose of disbarment is not meant as a punishment to deprive an attorney of a means of livelihood but is rather intended to protect thecourts and the public from members of the bar who have become unfit and unworthy to be part of the esteemed and noble profession. Likewise, the purpose of the

exercise of the power to cite for contempt is to safeguard the functions of thecourt to assure respect for court orders by attorneys who, as much as judges, are responsible for the orderly administration of justice.


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However, for his failure to comply with the specific Order of the SC (for him tofile his comment), Atty. Paras was reprimanded, with a warning that a more drastic punishment will be imposed upon him for a repetition of the same act. All lawyers are expected to recognize the authority of the Supreme Court and obey itslawful processes and orders. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who a

re themselves officers of the courts. It is well to emphasize again that a resolution of the Supreme Court is not be construed as a mere request, nor should itbe complied with partially, inadequately or selectively. Court orders are to berespected not because the justices or judges who issue them should be respected,but because of the respect and consideration that should be extended to the judicial branch of the government. This is absolutely essential if our government is to be a government of laws and not of men. The imposition of this sanction inthe present case would be more consistent with the avowed purpose of a disciplinary case, which is not so much to punish the individual attorney as to protect the dispensation of justice by sheltering the judiciary and the public from the misconduct or inefficiency of officers of the court. (Full text of resolution)

MERCANTILE LAW DIGEST

(Union Bank of the Philippines vs. Danilo Concepcion, G.R. No. 160727, 26 June 2007; J. Garcia; First Division)

Facts:

In 1997, the EYCO Group of Companies filed with the SEC a petition for the declaration of suspension of payment, appointment of a rehabilitation receiver/commit

tee and approval of rehabilitation plan with an alternative prayer for liquidation and dissolution of corporations ("Petition for Suspension of Payment"). Finding the petition to be sufficient in form and substance, the SEC Hearing Panel directed the suspension of all actions, claims and proceedings against EYCO, et al. pending before any court, tribunal, board or office. At the same time, the Panel set the petition for hearing.

Meanwhile, a consortium of private banks which had granted credit facilities toEYCO, among them, Union Bank, convened to map out their collective collection options. The formation of a management committee (ManCom) to represent the creditor banks was agreed upon in that meeting. Subsequently, Union Bank decided to break away from the consortium and filed a slew of civil cases against EYCO, et al., including a complaint before RTC-Makati for a sum of money, with application for preliminary attachment. The Makati RTC issued the desired writ of preliminaryattachment, pursuant to which levy on attachment was annotated on titles of various parcels of land.

Union Bank thereafter moved, on jurisdictional ground, for the dismissal of theSEC Case. On the same date, EYCO submitted its rehabilitation plan. In 1998, theSEC Hearing Panel appointed the regular members of the newly created ManCom forEYCO.

Meanwhile, Union Bank, without awaiting for the SECs ruling on its motion to dismiss the SEC Case, filed with the CA a petition for certiorari to nullify the SECsuspension order and its creation of the ManCom. Union Bank alleged that the ju

risdiction over the basic petition for declaration of suspension of payment pertains to the RTC under Act No. 1956, as amended, or the Insolvency Law. The CA rendered judgment declaring Union Bank guilty of forum shopping and accordingly di


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smissed its petition for certiorari. This was affirmed by the SC and the RTC-Makati subsequently issued an order indefinitely suspending the proceedings in thatcollection suit until further orders.

The SEC Hearing Panel approved the rehabilitation plan. On appeal by the consortium, the SEC en banc resolved to set aside the approval of the rehabilitation plan, disapprove the Petition to be Declared in State of Suspension of Payment, an

d order the liquidation and dissolution of the EYCO Group. In another order, theSEC en banc appointed respondent Concepcion to act, vice the dissolved Liquidation Committee, as EYCO Liquidator. Among Concepcions first act as such liquidatorwas to file a Motion to Intervene and To Admit Motion to Set Aside Order of Attachment.

Three days later, Concepcion submitted before the SEC a Liquidation Plan for theEYCO Group. The SEC approved the Concepcion-submitted Liquidation Plan. The RTC-Makati, however, denied the motion to intervene on the ground of lack of standing to intervene, his appointment as Liquidator being, according to the court, ofdoubtful validity. The order, in addition, granted Union Banks earlier motion todeclare EYCO in default, and set a date for the ex-parte reception of Union Ban

ks evidence.

Via a petition for certiorari and prohibition before the CA, Concepcion challenged the RTCs partial judgment and its earlier order denying the motion to intervene. The appellate court eventually issued the herein assailed Decision reversingthe Makati RTCs impugned issuances and allowing Concepcion to intervene.

Union Bank brought the matter to the SC. According to the petitioner, the respondents appointment as liquidator of EYCO was invalid for lack of jurisdiction on the part of SEC to preside, in first place, over EYCOs liquidation and dissolution. Pressing on, the petitioner states that EYCO is already insolvent and insolvency proceedings fall under the jurisdiction of regular courts under the Insolvency Law (Act No. 1956, as amended) in relation to the pertinent provision of R.A.

No. 8799, otherwise known as the Securities Regulation Code.

Issue: Whether or not the SEC has jurisdiction over the liquidation proceedings?Ruling:

The underlying petition EYCO filed with and over which the SEC assumed jurisdiction was one for declaration of suspension of payment, appointment of a rehabilitation receiver/committee, approval of rehabilitation plan with alternative prayer for liquidation and dissolution. That the SEC, along the way, ordained EYCOs liquidation and dissolution did not, without more, strip the SEC of jurisdiction over the liquidation process. Albeit jurisdiction over a petition to declare a corporation in a state of insolvency strictly lies with regular courts, the SEC possessed, during the period material, ample power under P.D. No. 902-A, as amended, to declare a corporation insolvent as an incident of and in continuation of its already acquired jurisdiction over the petition to be declared in the state of suspension of payments in the two instances provided in Section 5(d) thereof.Said Section 5(d) vests the SEC with exclusive and original jurisdiction over petitions for suspension of payments which may either be: (a) a simple petition for suspension of payments based on the provisions of the Insolvency Law, i.e., the petitioning corporation has sufficient assets to cover all its debts, but foresees the impossibility of meeting the obligations as they fall due, or (b) a similar petition filed by an insolvent corporation accompanied by a prayer for thecreation of a management committee and/or rehabilitation receiver based on the provisions of P.D. No. 902-A, as amended by P.D. No. 1758.

EYCOs petition for suspension of payment was, at bottom, a mix of both situationsadverted to above. For, while EYCO, in the said petition, alleged being solvent


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but illiquid, it nonetheless pleaded for the constitution of a rehabilitation receiver/committee, with an alternative prayer for liquidation, if warranted. Clearly then, the SEC has, from the start, jurisdiction over EYCOs petition for suspension of payment, such jurisdiction continuing for purposes of liquidation after it (SEC) declared EYCO insolvent. If the SEC contextually retained jurisdiction over the liquidation of EYCO, is it but logical then that it has competence toappoint the respondent or any qualified individual for that matter as liquidato

r.

The Court is certainly aware of the transfer, effected by R.A. No. 8799, to theRTC of the SECs jurisdiction defined under Section 5(d) of P.D. No. 902-A.[30] Such transfer, however, did not, as the petitioner and the RTC posit, divest the SEC of its jurisdiction over SEC Case No. 09-97-5764, given that it had already issued, as early as September 19, 1998, the suspension order after it found the petition for suspension filed on September 16, 1998 to be sufficient in form andsubstance. Subsection 5.2 of R.A. No. 8799 prescribing the jurisdiction transferand the rules on transition provides as follows:

Quote:5.2. The [Securities and Exchange] Commissions jurisdiction over all cases enumer

ated under Section 5 of [P.D.] No. 902-A is hereby transferred to the appropriate [RTC]: Provided that the Supreme Court may designate the [RTC] branches that shall exercise jurisdiction over these cases. xxx The Commission shall retain jurisdiction over pending suspension of payments/rehabilitation cases filed as of 30 June 2000 until finally disposed.EYCOs petition for suspension for payment was, for all intents and purposes, still pending with the SEC as of June 30, 2000. Accordingly, the SECs jurisdiction thereon, by the express terms of R.A. No. 8999, still subsists until [the suspension of payment case and its incidents are] finally disposed.

Given the above perspective, the Court is at a loss to understand petitioners challenge against the right of the respondent to intervene in Civil Case No. 97-2184, on the postulate that the latter lacks legal interest in the matter in litiga

tion. (Full text of the decision here)

POLITICAL LAW DIGEST

G.R. No. 174153, 25 October 2006; J. Carpio, Ponente; En Banc)

Facts:

On 15 February 2006, the group of Raul Lambino and Erico Aumentado (Lambino Group)commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the Commission on Elections (COMELEC) to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the Initiative and Referendum Act. The proposed changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentaryform of government. The Lambino Group claims that: (a) their petition had the support of 6,327,952 individuals constituting at least 12% of all registered voters, with each legislative district represented by at least 3% of its registered voters; and (b) COMELEC election registrars had verified the signatures of the 6.3 million individuals.

The COMELEC, however, denied due course to the petition for lack of an enablinglaw governing initiative petitions to amend the Constitution, pursuant to the Supreme Courts ruling in Santiago vs. Commission on Elections. The Lambino Group el


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evated the matter to the Supreme Court, which also threw out the petition.

Issue: Whether or not the initiative petition does not comply with Section 2, Article XVII of the Constitution on direct proposal by the people?Ruling:

Section 2, Article XVII of the Constitution is the governing provision that allo

ws a peoples initiative to propose amendments to the Constitution. While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of our Constitutionclearly show that: (a) the framers intended to adopt the relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first seethe full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text.

The essence of amendments directly proposed by the people through initiative upona petition is that the entire proposal on its face is a petition by the people.This means two essential elements must be present. First, the people must authorand thus sign the entire proposal. No agent or representative can sign on their

behalf. Second, as an initiative upon a petition, the proposal must be embodiedin a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, thepetition must state the fact of such attachment. This is an assurance that everyone of the several millions of signatories to the petition had seen the full text of the proposed amendments before - not after - signing.

Moreover, an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed and failure to do so is deceptive and mis

leading which renders the initiative void.

In the case of the Lambino Groups petition, theres not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither does thesignature sheet state that the text of the proposed changes is attached to it.The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral- Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. Thats why the Constitution requires that an initiative must be directly proposed by the people x x x in a petition - meaning that the people must sign on a petition that contains the full textof the proposed amendments. On so vital an issue as amending the nations fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless,and unelected individuals.

Issue: Whether or not the initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives?Ruling:

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is th


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rough a peoples initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to any amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the third mode, applies only to amendments to this Constitution. This distinction was intentional as shown by the deliberations of the Constitutional Commission. A peoples initiative to change the Constitution applies on

ly to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution.

Does the Lambino Groups initiative constitute an amendment or revision of the Constitution? Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment.

Courts have long recognized the distinction between an amendment and a revisionof a constitution. Revision broadly implies a change that alters a basic princip

le in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60%

is an amendment and not a revision. Also, a change requiring a college degree asan additional qualification for election to the Presidency is an amendment andnot a revision.

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. Thesechanges do not also affect the structure of government or the system of checks-and-balances among or within the three branches.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word republicanwith monarchic or theocratic in Section 1, Article II of the Constitution radicallyoverhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus,constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, const

itutions allow peoples initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.


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In California where the initiative clause allows amendments but not revisions tothe constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions

affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amountto a revision. Whether there is an alteration in the structure of government isa proper subject of inquiry. Thus, a change in the nature of [the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances.

Under both the quantitative and qualitative tests, the Lambino Groups initiativeis a revision and not merely an amendment. Quantitatively, the Lambino Groups pro

posed changes overhaul two articles - Article VI on the Legislature and ArticleVII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan ofgovernment, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. Ashift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and execut

ive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

The Lambino Group theorizes that the difference between amendment and revision is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called revisions because members of the deliberative body work full-time onthe changes. The same substantive changes, when proposed through an initiative,are called amendments because the changes are made by ordinary people who do notmake an occupation, profession, or vocation out of such endeavor. The SC, however,ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Groups theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.

Issue: Whether or not a revisit of Santiago vs. COMELEC is not necessary?Ruling:

The petition failed to comply with the basic requirements of Section 2, ArticleXVII of the Constitution on the conduct and scope of a peoples initiative to amend the Constitution. There is, therefore, no need to revisit this Courts ruling in

Santiago declaring RA 6735 incomplete, inadequate or wanting in essential termsand conditions to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present pet


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ition. Its settled that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.

Even assuming that RA 6735 is valid, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution, which provision must first be complied with even before complying with RA 6735. Worse, the petition violates the following provisions of RA 6735:

a. Section 5(b), requiring that the people must sign the petition as signatories. The 6.3 million signatories did not sign the petition or the amended petitionfiled with the COMELEC. Only Attys. Lambino, Donato and Agra signed the petitionand amended petition.

b. Section 10(a), providing that no petition embracing more than one subject shall be submitted to the electorate. The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government.

(G.R. No. 113191, 18 September 1996; J. VITUG, Ponente; First Division)

Facts: A complaint for illegal dismissal was filed against the Asian DevelopmentBank ("ADB"). Upon receipt of summonses, both the ADB and the DFA notified theLabor Arbiter that the ADB, as well as its President and Officers, were coveredby an immunity from legal process except for borrowings, guaranties or the saleof securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement Between The Bank And The Government Of The PhilippinesRegarding The Bank's Headquarters (the "Headquarters Agreement"). The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived its diplomatic immunity from suit, and issued a judgment in favor of the complain

ant. The ADB did not file an appeal, but the DFA sought a nullification with theNLRC. The latter denied the request.

Issue: Whether or not ADB is immune from suit?Ruling: No.

Under the Charter and Headquarters Agreement, the ADB enjoys immunity from legalprocess of every form, except in the specified cases of borrowing and guaranteeoperations, as well as the purchase, sale and underwriting of securities. The Banks officers, on their part, enjoy immunity in respect of all acts performed bythem in their official capacity. The Charter and the Headquarters Agreement granting these immunities and privileges are treaty covenants and commitments voluntarily assumed by the Philippine government which must be respected.

Being an international organization that has been extended a diplomatic status,the ADB is independent of the municipal law. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it isimmune from the legal writs and processes issued by the tribunals of the countrywhere it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, suchsubjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states."

The ADB didn't descend to the level of an ordinary party to a commercial transaction, which should have constituted a waiver of its immunity from suit, by entering into service contracts with different private companies. There are two confl


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icting concepts of sovereign immunity, each widely held and firmly established.According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized onlywith regard to public acts or acts jure imperii of a state, but not with regardto private act or acts jure gestionis. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an

act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particularact or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii,especially when it is not undertaken for gain or profit. The service contracts referred to by private respondent have not been intended by the ADB for profit orgain but are official acts over which a waiver of immunity would not attach.

Issue: Whether or not the DFA has the legal standing to file the present petition?Ruling:

The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to seriouslyimpair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. Wheninternational agreements are concluded, the parties thereto are deemed to havelikewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally on the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena. (Full text here)

REMEDIAL LAW DIGEST

October 14, 2005; J. Sandoval-Gutierrez, Ponente; Third Division)

Facts : Respondent Susan Ramirez was the complaining witness in a criminal casefor arson pending before the RTC. The accused was petitioner Maximo Alvarez, estranged husband of Esperanza Alvarez, sister of respondent.

On June 21, 1999, Esperanza Alvarez was called to the witness stand as the firstwitness against petitioner, her husband. Petitioner filed a motion to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.

Respondent filed an opposition to the motion. Pending resolution of the motion,the trial court directed the prosecution to proceed with the presentation of theother witnesses.

On September 2, 1999, the trial court issued the questioned Order disqualifyingEsperanza Alvarez from further testifying and deleting her testimony from the records. The prosecution filed a motion for reconsideration but was denied in theother assailed Order dated October 19, 1999.

This prompted respondent to file with the Court of Appeals a petition for certiorari with application for preliminary injunction and temporary restraining order. On May 31, 2000, the Appellate Court rendered a Decision nullifying and settin


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g aside the assailed Orders issued by the trial court. Hence, this petition forreview on certiorari.

Issue : May Esperanza testify over the objection of her estranged husband on theground of marital privilege?

Ruling : Yes, Esperanza may testify over the objection of her husband. The disqu

alification of a witness by reason of marriage under Sec. 22, Rule 130 of the Revised Rules of Court has its exceptions as where the marital relations are so strained that there is no more harmony to be preserved. The acts of the petitionerstamp out all major aspects of marital life. On the other hand, the State has an interest in punishing the guilty and exonerating the innocent, and must have the right to offer the testimony of Esperanza over the objection of her husband.

Click http://www.supremecourt.gov.ph/jurisprudence/2005/oct2005/143439.htm to read the full text of the decision.

LABOR LAW DIGEST

Sy vs. Metropolitan Bank & Trust Company, 2 November 2006; J. Quisumbing; ThirdDivision)

Facts:

Dennis Sy would have rendered 30 years of service by 18 August 1999 under the banks retirement plan, which states that an employee must retire upon reaching theage of 55 years or after rendering 30 years of service, whichever comes earlier.However, on 5 February 1999, the bank reappointed him as branch manager for a term of one year with corresponding salary increment.

On 10 November 1999, the bank released the results of the audit conducted in itsBajada branch where Sy was the branch manager. On 15 November 1999, Sy tenderedan irrevocable letter of retirement requesting the timely release of his retirement pay and other benefits. The bank denied his request averring that Sy allowed spouses Gorgonio and Elizabeth Ong to conduct kiting activities (drawing of checks against uncollected funds) in their account with the bank. Accordingly, thebank placed Sy under preventive suspension and gave him 48 hours to submit a written explanation.

In response, Sy explained that he merely made a wrong credit judgment. Not satisfied with his reply, the bank notified Sy of other alleged violations of companypolicies (unauthorized grant of accommodation to accounts engaged in kiting activities, among others). Sy refuted the other allegations, but the bank, feelingunconvinced, dismissed Sy on 15 December 1999.

Sy filed against the bank a complaint for illegal suspension, illegal dismissaland money claims. However, the Labor Arbiter dismissed the case for lack of merit. On appeal, the NLRC deemed Sy compulsory retired awarding him retirement benefits, unpaid salary, monetary value of unused leave credits, 13th month pay, Christmas bonus, and refund of provident fund. The bank elevated the matter to theCourt of Appeals, which set aside the ruling of NLRC and reinstated the decisionof the Labor Arbiter. Upon motion for reconsideration, however, the appellate court modified its ruling and ordered the bank to reimburse Sys contribution to the provident fund. Feeling aggrieved, Sy brought the matter to the Supreme Court,which denied the petition and affirmed the decision of the Court of Appeals.

Issue: Whether Sy was illegally terminated?Ruling: No, the termination was valid.


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Ratio:

Sy was validly dismissed on the ground of fraud and willful breach of trust under Article 282 of the Labor Code. Records reveal that as a bank manager, he authorized kiting activities in wanton violation of banks policies. Sys conduct betrayshis culpability. Shortly after the audit, he tendered an irrevocable letter ofretirement. Sys evident failure to offer any reasonable excuse for such sudden sh

ift in his plans is prejudicial to his cause. His premise that he could no longer be dismissed by the bank after having been compulsorily retired is absurd. Indeed, he would have qualified for retirement, however, he opted to accept the banks offer of extending his employment for another year. Thus, in effect, he had never retired. Unfortunately for him, while serving such extended term, he committed an act which is a clear breach of trust reposed in him by the bank. He cannotnow elude dismissal for a just cause by claiming he was already retired compulsorily.

Issue: Is Sy nevertheless entitled to retirement benefits?Ruling: No.Ratio:

Under the Labor Code, only unjustly dismissed employees are entitled to retirement benefits and other privileges including reinstatement and back wages. Since Sys dismissal was for a just cause, he is not entitled to any retirement benefit.To hold otherwise would be to reward acts of willful breach of trust by the employee. It would also open the floodgate to potential anomalous banking transactions by the bank employees whose employments have been extended. Since the banks operation is essentially imbued with public interest, it owes great fidelity to the public it deals with. In turn, it cannot be compelled to continue in its employ a person in whom it has lost trust and confidence and whose continued employment would patently be inimical to the banks interest. While the scale of justice is tilted in favor of workers, the law does not authorize blind submission to theclaim of labor regardless of merit.

TAX DIGEST

In its Decision dated 22 August 2001, as affirmed in its Resolution dated 25 March 2003, the SC ruled that PLDTs exemption from the payment of local franchise tax was withdrawn by R.A. 7160, otherwise known as The Local Government Code of 1991 or LGC. No amendment to re-enact the previous tax exemption of PLDT was made by Congress.

Facts:

On 3 Aug. 1991, R.A. 7082 was approved, further amending the franchise of PLDT.Section 12 of said franchise provides that PLDT shall pay a franchise tax in lieuof all taxes on this franchise or earnings thereof. Section 12 reads:Quote:The grantee, its successors or assigns shall be liable to pay the same taxes ontheir real estate, buildings, and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns, and the said percentage shall be in lieuof all taxes on this franchise or earnings thereof . . .

On 1 Jan. 1992, the LGC took effect. Under this law, provinces and cities are authorized to impose tax on all business with a franchise and withdrew tax exemptions or incentives presently enjoyed by all persons. Section 193 reads:


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Quote:Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code,tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. 6938,non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code.In 1992, Davao City passed Ordinance No. 159, imposing a tax on businesses enjoyi

ng a franchise, at the rate of seventy-five percent (75%) of one percent (1%).

On 1 March 1995, R.A. 7925 (Public Telecommunications Policy Act of the Philippines) was approved, providing for the equality of treatment in the telecommunications industry. The pertinent provision is Section 23, which reads:

Equality of Treatment in the Telecommunications Industry. Any advantage, favor,privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously granted telecommunications

2006 Bar Legal Ethics

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Transcript of 2006 Bar Legal Ethics