Sunday, November 1, 2015

Habak (Bullet Anting-Anting), Airports, and the Law.

In the Visayas, HABAK is a common anting-anting (kalaki) using ammunition shell casings. The shell casings are filled with herbs, medicinal plants, oils, pieces of paper with latin prayers on them. The opening is crimped shut and a hole is punched where a piece of string is passed through. A Habak is usually worn on the hips or on the waist.

A few years back, the old firearms law (PD 1866 as amended by RA 8294) was repealed by the New Firearms Law, also known as Comprehensive Firearms and Ammunition Regulation Act (RA 10591). Let's take a look at these laws:

PD 1866: Ammunition was not defined.
RA 8294: Ammunition was not defined.
RA 10591: Sec. 3,  (b) Ammunition refers to a complete unfixed unit consisting of a bullet, gunpowder, cartridge case and primer or loaded shell for use in any firearm.

Let's take a look at the Visayan Habak Anting-Anting, it's merely a shell casing/cartridge without any bullet and gunpowder. Using the law's definition of what Ammunition is, HABAK cannot be considered as ammunition as it is, in its entirety, incomplete.

What should you do if you are held at the airport for allegedly carrying "ammunition" consisting of a HABAK on your person. You could argue that under the law, by its very definition, a habak cannot be considered as ammunition, and that the security personnel who hassled you should just shut the fuck up and die.

But all the same, it would be such a hassle on your part to have to argue with so-called airport security on the definition of Ammunition since it is very likely that most of them have not even read the new law, or even understood it.

Tuesday, October 27, 2015

Management Prerogatives

When I used to teach Labor Law to college undergraduates, a big part of our discussion was about Management Prerogatives, I do hope my students retained something after hours and hours discussing these 13 slides:

Sunday, October 25, 2015

Annulments in the Philippines

A few years back, I presented the essentials of Annulments and Declaration of Nullity of Marriage at the University of San Jose - Recoletos. While going over my files, I found my presentation slides. For those wanting to know what an Annulment is or what a Declaration of Nullity of Marriage is, please read on. A word of caution for the readers, this topic refers to a CIVIL application for Annulment / Declaration of Nullity of Marriage and not a CHURCH application. Please refer to my earlier post on the topic.

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:

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