Tuesday, September 29, 2015

Penis Got Chopped Off: It's a crime.

In the Philippines, we have a crime called Mutilation. What does mutilation mean? In general, mutilation is the intentional chopping off of a body part which will not grow again. (Please stop with the penis jokes. A penis may grow but not when it's chopped off.) For this crime to be consummated, chopping off another person's Happystick must be intentional or you really have the intent to chop it off. If you just mindlessly played around with a knife and hacked off your friend's Happystick and you weren't planning of even hacking it off, that's not mutilation but Physical injuries. 

Let's take a look at what the law says about Mutilation. Art. 262 of the Revised Penal Code provides:

"The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ of reproduction. 

Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods."

If you intentionally just want to chop off the tip of your friend's Happystick, that's already mutilation under the first paragraph which comes with a very heavy penalty already. A few inches off the top or the entire penis is intentionally chopped off doesn't matter, the penalty is the same. 

Now, if you planned to cut off some other body part, such as an offending finger, that's still mutilation but under the second paragraph. 

In short, whether you just nipped the tip, or totally chopped it off, the penalty is higher if such member is used for reproduction, otherwise, if said body part is not used for reproduction (do not tell me a finger used for reproduction, I'll chop off your fingers), the penalty is lesser. The important element is that you have the intention to really chop off that body part. 

In the next few days, I'll write about this particular law in relation to RA 9262 (Anti Violence Against Women and their Children Law) on women chopping off their partner's Happysticks and Battered Woman Syndrome.

Thursday, September 17, 2015

RPC: Two Modes of Rape and Common Misconceptions About the Crime.

Many of us are familiar with the term rape but there are actually two (2) modes of rape under RA 8353 (Oct. 22, 1997). Rape may be distinguished through the mode in which which it was committed, to wit:

Classic Rape:

  1. The offender is always male.
  2. The victim is always a female.
  3. Committed through penile penetration of the vagina
  4. Penalty is greater than that provided for under sexual assault.

Rape by Sexual Assault:

  1. The offender may be male or female. Gender here is of no moment.
  2. The victim may be male or female. Gender here is of no moment also.
  3. Rape is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person.
  4. The penalty is lower than that provided in Classic Rape.

How is rape consummated in Classic or Traditional Rape? The Supreme Court held in People of the Philippines vs. Orilla GR No. 148939-40, 2/13/04, that (T)he mere introduction of the penis into the labia majora of the victim's genitalia engenders the crime of rape. Hence, it is the "touching or "entry" of the penis into the labia majora or the labia minora of the pudendum of the victim's genitalia that consummates rape. Simply stated, the mere fact that the penis touches any part of the labia majora or labia minora, the crime of rape is already consummated. Complete penetration is not necessary to convict for consummated rape since the slightest penetration will suffice. The SC clarified that "slightest penetration" to mean that there must be sufficient and convincing proof that the penis indeed touched at the very least the labias of the female organ. (Pp vs Bon)

Some people may argue that there is no rape because the victim's hymen is intact, such concept is hogwash. The presence or absence of a hymen is not material in the crime of rape. As stated, even the slightest penetration or touching of the penis on the labia majora/labia minora is already sufficient. The Supreme Court even stated in 1994 that (I)n rape cases, there are no half measures or even quarter measures nor is their gravity graduated by the inches of entry. Partial penile penetration is as serious as full penetration; the rape is deemed consummated in either case. In a manner of speaking, bombardment of the drawbridge is invasion enough even if the troops do not succeed in entering the castle.

Tuesday, September 15, 2015

"The Presidential Residence" in Shishi City

By Fr. Genesis Velez:

After Sergio Osmena's term as president, Manuel Gotianuy (吴天为) and others, prepared a house to serve as Osmena's residence when he would come "to visit his family" (探亲). Craftsmen prepared a black wooden board with a golden inscription "总统寓" (Presidential Residence). Due to political reasons, Osmena could not make his visit known to public. This board did not have a meaning at all in the Philippines. After the liberation, overseas Chinese who frequently returned to their village, the members of the Go family, brought this board to China, so that it could be hung on one of the pillars of the ancestral house's big hall. In this way, Go family's precious moment in history could be preserved. Unfortunately this board got lost during the liberation's "land reform."

Documentary video: http://www.tudou.com/programs/view/6TNTk05OH1k/

The city of Shishi planned to have it declared a heritage site because of the fact that the structure is more than hundred years old and it is an ancestral house of a former Philippine president.

In the Gudong Village's Go Family Genealogy, it is mentioned that Wu Wentiao (Pedro Gotiaoco) had three "wives" and the name of his sons except Don Sergio were mentioned. Gotiaoco wanted that Don Sergio be recorded in the Philippine registry. The Chinese say that this was influenced by the principle of DISHU hierarchy (DI - born of a straight lineage vs. SHU - born of a concubine). I think this has something to do with the inheritance. Some say that the mere fact that Don Sergio has a Chinese name (Wu Shimin or Go Si Bin in Fookien) simply confirm that he was the son of Pedro Gotiaoco. The other alleged child of Gotiaoco, Dona Modesta Gaisano, has the the Chinese name Wu Sazhi or Go Sa Ti in Fookien.

Church Annulment vs Civil Annulment

While the Roman Catholic Church may have made annulments easier and cheaper, it is only true for Church Annulments and not in Civil Annulments. Let us remind Filipinos that the Catholic Church (or any church or religious denomination for that matter) is a separate entity from the Republic of the Philippines. While the Church may grant annulments internally or within their own sphere involving their members, such annulments granted by said Church is not automatically binding upon the state.

The Roman Catholic Church has a separate proceeding for annulling marriages in accordance with Canon Law and not with Civil Law which is not binding upon the State (Republic of the Philippines).

The confusion lies with the terminology, most people are not aware that both entities, the Church as well as the State, have separate procedures in annulling marriages for various reasons as stated both in Canon Law and in Civil Law. Filipinos think that just because the Pope says it is relaxing its rules on annulments, the same goes with annulments in our civil courts.

While it is true that part of the Family Code of the Philippines involving Psychological Incapacity (Art. 36) is based on Canon 1095 of Canon Law (if one uses such a ground for annulling marriages as there are several), Jurisprudence as pronounced by the Supreme Court of the Philippines has this to say: (335 Phil. 664, 676-680 (1997)
Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally -- subject to our law on evidence -- what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church -- while remaining independent, separate and apart from each other -- shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.

The reality therefor is that if one is able to secure a Church Annulment, such annulment is binding only upon the Church and must be proven based on the Rules of Evidence in order to be binding upon the whole world if pronounced by our Civil Courts. Said Church Annulments will not be automatically accepted by Civil Authorities.

Therefore, if you are able to secure a Church Annulment, one has to secure a Civil Annulment and use the pronouncements in the Marriage Matrimonial Council as one of your pieces of evidence so that your Civil Annulment may be granted, as stated earlier, while it is not binding upon our Civil Courts, said church annulment will be given great persuasive weight.

On the otherhand, if one is able to secure a Civil Annulment and you want to get remarried in the Roman Catholic Church, you must secure a Church Annulment. Presently, there are two uses for Church  Annulments in my humble opinion:

1. A church annulment may be used as evidence in a civil annulment which has great persuasive effect in annulling your wedding; secondly
2. A church annulment will allow you to be remarried in a Roman Catholic Church; provided that you are able to secure a Civil Annulment as well and have it recorded in the Civil Registry.

Wednesday, August 19, 2015

Road Abuse and Lack of Public Utility - Salvador Ext., Labangon, Cebu City

An almost 700 meter stretch of road known as Salvador Extension in Labangon, Cebu City is not serviced by any public utility jeepney. Years ago, the 12L jeepneys used to ply this route on its way back to the city, passing through Labangon, Duterte St., in Banawa, then through "eskina" V. Rama, M. Velez St., then towards Escario St., ending in Ayala Center.

From the junction of Katipunan and Salvador Sts., up to Dr. Pablo U. Abella St., this stretch of road is a veritable no man's land for public utility vehicles; because of the void, habal-habal drivers, as well as trisikads have taken over. For years the habal-habal drivers and trisikads have made the waiting shed near the Cebu City National Science High School their terminal.

Every now and again, CITOM (now CCTO) would conduct operations near the Cebu City National Science High School, but after they leave, these habal-habal drivers and trisikad drivers would come out of hiding and ply the almost 700 meter stretch of road once again. Being a resident of Labangon, Cebu City, I have always wondered why LTFRB took this route away from 12L jeepneys on their way to Ayala Center.

As an aside, I cannot but help remark that this beautiful four lane concrete stretch of road, in certain places, have been occupied by eateries being patronized by CITOM (now CCTO) personnel, taxi and jeepney drivers, and recently by car wash shops, rendering two (2) lanes on either side useless for the passage of vehicles. Maybe PROBE could visit the area around 4:00 o'clock to 6:00 o'clock to see what I mean.

Despite having been widened in the 1990s through the MCDP, I have yet to see the outer lanes of Salvador Extension used other than a parking lot, carenderia, or a car wash. 

Tuesday, July 28, 2015

Nuisance Petition of Injunction with Prayer for issuance of TRO in Extrajudicial / Judicial Foreclosure of Real Estate Mortgages

All too often when a mortgagor is at the end of his leash he will secure the services of a lawyer to file an injunction suit against a recently filed Petition for Judicial Foreclosure of Real Estate Mortgage or an application for Extrajudicial Foreclosure of Real Estate Mortgage.

Before said injunction suit will be given due course or even the prayer for issuance of a temporary restraining order, the trial court will have to determine whether or not the same complies with the Rules set forth in AM No. 99-10-05-O otherwise the petition will be thrown out. To be sure, to prevent the filing of NUISANCE petitions, counsel must make sure to comply with the requirements set forth in paragraphs 1 and 2 of the Admin Matter. Now what is this Administrative Matter all about? Here's the full text of the AM:


[A.M. No. 99-10-05-O : February 20, 2007]



Acting on the recommendation of the Committee on Revision of the Rules of Court, the Court RESOLVED to adopt the following additional rules with respect to Extrajudicial or Judicial Foreclosure of Real Estate Mortgages:

(1) No temporary restraining order or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the loan secured by the mortgage has been paid or is not delinquent unless the application is verified and supported by evidence of payment.

(2) No temporary restraining order or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the interest on the loan is unconscionable, unless the debtor pays the mortgagee at least twelve percent per annum interest on the principal obligation as stated in the application for foreclosure sale, which shall be updated monthly while the case is pending.

(3) Where a writ of preliminary injunction has been issued against a foreclosure of mortgage, the disposition of the case shall be speedily resolved. To this end, the court concerned shall submit to the Supreme Court, through the Office of the Court Administrator, quarterly reports on the progress of the cases involving ten million pesos and above.

(4) All requirements and restrictions prescribed for the issuance of a temporary restraining order/writ of preliminary injunction, such as the posting of a bond, which shall be equal to the amount of the outstanding debt, and the time limitation for its effectivity, shall apply as well to a status quo order.

Upon effectivity of these additional rules, all rules resolutions, orders and circulars of this Court, which are inconsistent therewith, are hereby repealed or modified accordingly.

These additional Rules in the Procedure in Extrajudicial or Judicial Foreclosure of Real Estate Mortgages shall take effect on March 10, 2007 following their publication in a newspaper of general circulation not later than February 28, 2007.

February 20, 2007.

Chief Justice

Associate Justice
Associate Justice

Associate Justice
Associate Justice

Associate Justice
Associate Justice


Monday, July 27, 2015

The Smell Test

What is MY "smell test"? It's a simple way for me of knowing that a glass/cup used by restaurants hasn't been thoroughly cleaned. I put my nose near the lip of the glass/cup to check if there is a hint of that smell that comes from saliva. More often than not, these restaurants would fail this smell test. The nastiest offender of them all, in my book anyway, is a fast food place in an uptown Cebu mall, named after a musician. I took a whiff from the lip of the cup and I could smell it: saliva. 

One would most definitely know if its saliva and you know it isn't yours. Although they'd put a straw in your cup, one will have to wonder how thoroughly the cup was cleaned since it still smelled like someone's saliva. 

Do the test yourself, there are several establishments that do not use disposal cups. Try it and prepare to vomit.

The worst offenders are:
1. two of the oldest pizzarias in the Philippines.
2. a roast place named after a musician

Sunday, July 26, 2015

Colon Street, Cebu City Flooding

As far as I can remember, downtown Cebu City especially Colon St., is usually flooded during a downpour. Many solutions have been posed in order to address the problem but year after year during the rainy season, the flooding won't just stop.

Almost parallel to Colon St., we have the Estero Parian which is now heavily silted. A hundred years ago, this Estero was in fact navigable and contributed to the wealth of the Parian District as well as to Colon St., itself where stores and warehouses, then and now, are located.

Let us take a look at downtown Cebu City through historical maps, and let us see how Estero Parian almost completely disappeared.

This is a map of Ciudad de Zebu in 1643. Note that the city is surrounded by a waterway, some have speculated that this is a moat, but in fact it is not. It is actually the Estero Parian with its Northern and southern inlets. Towards the middle of the waterway, is a a depression, a tidal basin where seawater would pool in during high tide. In the early part of the Spanish Occupation, downtown Cebu was pretty much still swamp land, in fact, most of the coastal areas of Cebu City today is still marshy swamp land.

In 1699 when this Site Plan drafted, one can still see the southern and northern inlets of the tidal basin as can be seen on the bottom right side of this photo. (the map is not oriented north).

In the 1700s, a more accurate topographical map was commissioned by the Spaniards. This map would reveal that downtown Cebu City was actually like an island, similar to Cordova today, with tidal basin in what is now Manalili St.,

Eventually in the early 1800s, the land to the east of the Parian district was filled in. What used to be seashore eventually became the pier area. The Northern part of the Estero Parian greatly contributed to the wealth of those living in Parian and in Colon since cascos would take on cargo from the boats docked near or outside the pier, passing through the inlet in the area now occupied by the Tabacalera Bridge, on its way to the warehouses and stores along Colon St.

By the middle towards the late 1800s, the tidal basin disappeared, and the southern inlet changed course which eventually disappeared. But because the tidal basin is in fact a depression in the land, water would still pour into the area during a heavy downpour. 

Let us remember that just a century ago, during the American period, the Estero Parian, or the northern end of it, was still navigable. It was wide enough for small boats to carry its cargoes from the erstwhile dock area before it was moved closer to Fort San Pedro. This photo from the 1940s during the bombing raids conducted by the Americans would show how the Estero Parian looked like. (Photo not oriented to north)

With the passage of time, establishments encroached on the waterway easements and structures were built over the waterway and the Estero became heavily silted. With less than responsible residents, drains became clogged with garbage and soil which also contributed to the flooding of downtown Cebu, especially in the Colon area. 

The flooding issue in downtown Cebu City is not as simple as just putting in new drains, expanding the existing ones, and teaching residents not to throw their trash anywhere. An understanding of the geography of the area will also benefit the City. 

In summary, downtown Cebu City (geographically speaking) is:
1. swampy marshland;
2. approximately 0.5-5meters above sea level;
3. old waterways/esteros are heavily silted;
4. old waterways/esteros are encased in culverts underneath buildings;
5. has a depression near the Manalili area (V. Gullas)

How do we treat this problem? It should not take a lifetime if we want a livable Cebu.

UPDATE ---->
Atty. Mark Gregory Avila has kindly granted me permission to post this photo of the Estero Parian as viewed from Colonade Mall.

Friday, February 13, 2015

Automatic PhilHealth Coverage for Senior Citizens

Just recently passed in November 2014. The news article was lifted from GMA, read on for more information:

President Benigno Aquino III signed into law a measure granting automatic, lifetime membership of senior citizens to Philippine Health Insurance Corp. (PhilHealth).
In a statement Tuesday, Senator Ralph Recto, principal author of the Senate version of Republic Act (RA 10645), said Aquino signed the measure last week.
Under RA  10645 or "An Act Providing for the Mandatory PhilHealth Coverage for All Senior Citizens,” all citizens who are 60 years old and above will receive the benefits and discounts extended to ordinary PhilHealth members by just presenting a valid ID that proves their real age.
“Magpakita lang sila ng ID bilang patunay na sila'y senior citizen at matatanggap na nila mula sa ospital ang karapatang benepisyong laan sa mga miyembro ng PhilHealth," Recto said.
The RA 10645 amends RA No. 994 or “The Expanded Senior Citizens Act of 2010”and removes the qualification that a senior citizen has to be an indigent or poor before qualifying for PhilHealth coverage, with premium payments fully subsidized by the national government.
Based on Senate records, there are roughly 6.1 million senior citizens in the Philippines today, of which 3.94 million are covered by PhilHealth either as indigent, sponsored, lifetime member, or dependent.
Recto said the signing of the new law brings the remaining 2.16 million senior under PhilHealth coverage.
“Health insurance can never be called universal if it does not cover all seniors. Enrolling them must be automatic, not optional. The ideal is that the minute they blow out the candles on their 60th birthday cake to the moment they breathe their last – they should be PhilHealth members," Recto said.

'Early Christmas gift'
Senator Teofisto “TG” Guingona III, principal sponsor of RA 10645 and chairman of the Senate committee on health and demography, welcomed the President’s move, saying it can be considered an “early Christmas gift” to the Filipino elders.
“It is high time that we give back to our country's elders. In our culture, the condition and situation of a person in his or her advanced age is the reflection of the character of his or her children. How we take care of our senior citizens is also a mirror of our character as a nation," Guingona said in a separate statement.
“"It is the priority of this administration to give social protection services to all Filipinos. Let us start with our seniors," he added.
As of December 2013, there are a 76.90 million Filipinos covered by PhilHealth – 31.27 million of which are registered members and 45.63 million are dependents.
In 2013, PhilHealth reported P62 billion in premium contributions on top of P12.612 billion worth of subsidies from the national government.
Also last year, PhilHealth shelled out P55.559 billion in benefits payments.
Apart from Recto, the Senate version of RA 10645 was co-authored by Senators Guingona, Bam Aquino, Loren Legarda, Nancy Binay, Cynthia Villar, Sonny Angara, Alan Peter Cayetano, Pia Cayetano, Francis Escudero, JV Ejercito, Vicente Sotto III, Sergio Osmena, Aquilino Pimentel III, Grace Poe, Sonny Trillanes, Gregorio Honasan, Manuel Lapid, Bongbong Marcos and Senate President Franklin Drilon. – VS, GMA News

Acknowledged Illegitimate Children

Previously, it became automatic and compulsory on the part of the illegitimate child to carry the surname of his/her illegitimate father whenever he/she will be acknowledged. However, the Supreme Court struck down the NSO's rules regarding the matter in GRACE M. GRANDE v. PATRICIO T. ANTONIO, G.R. NO. 206248, February 18, 2014. The Supreme Court held that Art. 176 of the Family Code gives illegitimate children the right to decide if they want to use the surname of their father or not. On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word “may” in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word “may” is permissive and operates to confer discretion upon the illegitimate children.

With that in mind, if you do plan to acknowledge your illegitimate child, your child cannot yet take on your surname, when the time comes, your child will have to decide if he/she will use your surname.