Bar Oops! No.

08-001
(Ramdom Bar Updates and Whatnots)

Political Law
EXCERPTS FROM THE SUMMARY OF THE NERI v. SENATE
COMMITTEE CASE

What are the types of executive privilege?

a. state secrets (regarding military, diplomatic and other
security matters)
b. identity of government informers
c. information related to pending investigations
d. presidential communications
e. deliberative process

What is the type of executive privilege claimed in this

case?
The type of executive privilege claimed in this case is the
presidential communications privilege.

Is there a presumption in favor of presidential

communications?
Yes. Presidential communications are “presumptively privileged”.
The presumption is based on the President’s generalized interest
in confidentiality. The privilege is necessary to guarantee the
candor of presidential advisors and to provide the President and
those who assist him with freedom to explore alternatives in the
process of shaping policies and making decisions and to do so in
a way many would be unwilling to express except privately.

The presumption can be overcome only by mere showing of

public need by the branch seeking access to presidential
communications.

Who are covered by the presidential communications

privilege?
Aside from the President, the presidential communications
privilege covers senior presidential advisors or Malacañang staff
who have “operational proximity” to direct presidential decision-
making.
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What are the elements of the presidential

communications privilege?
The following are the elements of the presidential
communications privilege:
1. The protected communication must relate to a
“quintessential and non-delegable presidential power”;
2. The communication must be authored or “solicited and
received” by a close advisor of the President or the
President himself. The advisor must be in “operational
proximity” with the President; and
3. The privilege is a qualified privilege that may be overcome
by a showing of adequate or compelling need that would
justify the limitation of the privilege and that the
information sought is unavailable elsewhere by an
appropriate investigating agency.

What are examples of “quintessential and non-delegable

presidential powers” which are covered by the
presidential communications privilege?
The privilege covers only those functions which form the core of
presidential authority. These are functions which involve
“quintessential and non-delegable presidential powers” such as
the powers of the president as commander-in-chief (i.e., to call
out the armed forces to suppress violence, to declare martial law,
or to suspend the privilege of the writ of habeas corpus), the
power to appoint officials and remove them, the power to grant
pardons and reprieves, the power to receive ambassadors, and
the power to negotiate treaties and to enter into execute
agreements.

Source: Primer on the SC Ruling on Neri Case by Atty. Carlos P.

Medina, Jr. Executive Director, Ateneo Human Rights Center and
Professor, Ateneo School of Law // www.nagkakaisangiskolar.com

Labor Law
What is the role of the employer if a petition for
certification election is filed?
Answer: A mere by-stander. In all cases, whether the petition for
cert. election is filed by an employer or a legitimate labor
organization, the employer shall not be considered a party
thereto with concomitant right to oppose a petition for
certification election. However, employer’s participation is
limited to:

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A) notice or information of petitions of such nature; and

B) submit list of employees in the bargaining unit under oath
during the pre-election conference should the Med-Arbiter
act favorably on the petition.

Source: Art. 258-A, Labor Code and Sec. 12, Republic Act
No. 9481, AN ACT STRENGTHENING THE WORKERS'
CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING
FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS
AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE
PHILIPPINES, lapsed into law 25 May 2007.

Civil Law
Is pathological lying constitutive of psychological
incapacity under Art. 36, FC?
Yes. Statistics never lie, but lovers often do, quipped a sage. This
sad truth has unsettled many a love transformed into matrimony.
Any sort of deception between spouses, no matter the gravity, is
always disquieting. Deceit to the depth and breadth unveiled in
the following pages, dark and irrational as in the modern noir
tale, dims any trace of certitude on the guilty spouse’s capability
to fulfill the marital obligations even more.

It should be noted that the lies attributed to respondent

were not adopted as false pretenses in order to induce petitioner
into marriage. More disturbingly, they indicate a failure on the
part of respondent to distinguish truth from fiction, or at least
abide by the truth. Petitioner’s witnesses and the trial court were
emphatic on respondent’s inveterate proclivity to telling lies and
the pathologic nature of her mistruths, which according to them,
were revelatory of respondent’s inability to understand and
perform the essential obligations of marriage. Indeed, a person
unable to distinguish between fantasy and reality would similarly
be unable to comprehend the legal nature of the marital bond,
much less its psychic meaning, and the corresponding
obligations attached to marriage, including parenting. One
unable to adhere to reality cannot be expected to adhere as well
to any legal or emotional commitments.

There is little relish in deciding this present petition,

pronouncing as it does the marital bond as having been

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inexistent in the first place. It is possible that respondent, despite

her psychological state, remains in love with petitioner, as
exhibited by her persistent challenge to the petition for nullity. In
fact, the appellate court placed undue emphasis on respondent’s
avowed commitment to remain in the marriage. Yet the Court
decides these cases on legal reasons and not vapid
sentimentality. Marriage, in legal contemplation, is more than the
legitimatization of a desire of people in love to live together.

Source: Antonio v. Reyes, G.R. No. 155800, 10 March 2006,

penned by Justice Tinga.

Taxation
What is the nature of VAT and the so-called tax credit
method?
Viewed broadly, the VAT is a uniform tax ranging, at present,
from 0 percent to 10 percent (now 12 percent) levied on every
importation of goods, whether or not in the course of trade or
business, or imposed on each sale, barter, exchange or lease of
goods or properties or on each rendition of services in the course
of trade or business as they pass along the production and
distribution chain, the tax being limited only to the value added
to such goods, properties or services by the seller, transferor or
lessor. It is an indirect tax that may be shifted or passed on to
the buyer, transferee or lessee of the goods, properties or
services. As such, it should be understood not in the context of
the person or entity that is primarily, directly and legally liable
for its payment, but in terms of its nature as a tax on
consumption. In either case, though, the same conclusion is
arrived at.

The law that originally imposed the VAT in the country, as

well as the subsequent amendments of that law, has been drawn
from the tax credit method. Such method adopted the mechanics
and self-enforcement features of the VAT as first implemented
and practiced in Europe and subsequently adopted in New
Zealand and Canada. Under the present method that relies on
invoices, an entity can credit against or subtract from the VAT
charged on its sales or outputs the VAT paid on its purchases,
inputs and imports.

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If at the end of a taxable quarter the output taxes charged

by a seller are equal to the input taxes passed on by the
suppliers, no payment is required. It is when the output taxes
exceed the input taxes that the excess has to be paid. If,
however, the input taxes exceed the output taxes, the excess
shall be carried over to the succeeding quarter or quarters.
Should the input taxes result from zero-rated or effectively zero-
rated transactions or from the acquisition of capital goods, any
excess over the output taxes shall instead be refunded to the
taxpayer or credited against other internal revenue taxes.

Source: CIR v. Seagate Technology (Philippines), penned by J.

Panganiban, G.R. No. 153866, 11 February 2005.

Mercantile Law
Is the “indivisibility of the real estate mortgage” violated
when two separate foreclosure proceedings are instituted
on mortgaged properties located in different provinces?

A.M. No. 99-10-05-0 (dated December 14, 1999 and

amended by the Resolutions of January 30, 2001 and further by
August 7, 2001), the Procedure on Extra-Judicial Foreclosure of
Mortgage, lays down the guidelines for extra-judicial foreclosure
proceedings on mortgaged properties located in different
provinces. It provides that the venue of the extra-judicial
foreclosure proceedings is the place where each of the
mortgaged property is located. Relevant portion thereof
provides:

Where the application concerns the

extrajudicial foreclosure of mortgages of real estates
and/or chattels in different locations covering one
indebtedness, only one filing fee corresponding to
such indebtedness shall be collected. The collecting
Clerk of Court shall, apart from the official receipt of
the fees, issue a certificate of payment indicating the
amount of indebtedness, the filing fees collected, the
mortgages sought to be foreclosed, the real estates
and/or chattels mortgaged and their respective
locations, which certificate shall serve the purpose of
having the application docketed with the Clerks of
Court of the places where the other properties are

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located and of allowing the extrajudicial foreclosures

to proceed thereat.

The indivisibility of the real estate mortgage is not violated

by conducting two separate foreclosure proceedings on
mortgaged properties located in different provinces as long as
each parcel of land is answerable for the entire debt.

Source: Yu v. Philippine Commercial International Bank (2006)

Criminal Law

Nick was convicted of raping his 13-year old daughter.

The court imposed the death penalty on him. Is the
imposition proper?
No. Even as the Supreme Court sustained his conviction,
pursuant to the new law (RA 9346), the death penalty imposed
upon him was reduced to reclusion perpetua, although he shall
not be eligible for parole under the Indeterminate Sentence Law.

While the new law prohibits the imposition of the death

penalty, the penalty provided for by law for a heinous offense is
still death and the offense is still heinous. Consequently, the civil
indemnity for the victim is still P75,000. On the other hand, the
automatic appeal in cases when the trial court imposes the death
penalty will henceforth not apply, since its imposition is now
prohibited, so that there is a need to perfect an appeal, if appeal
is desired, from a judgment of conviction for an offense where
the penalty imposed is reclusion perpetua in lieu of the death
penalty pursuant to the new law prohibiting its imposition.

Source: People v. Salome, G.R. No. 169077 (2006)

Remedial Law

What is the writ of amparo?

The writ of amparo is a remedy available to any person whose
right to life, liberty, and security has been violated or is

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threatened with violation by an unlawful act or omission of a

public official or employee, or of a private individual or entity.
The writ covers existing extralegal killings and enforced
disappearances or threats thereof.

When did it take effect and what is the significance of the

date of effectivity of this remedy?
The rule on the writ took effect on October 24, 2007, in time for
the 62nd anniversary of the United Nations.

How much are the filing fees?

There is NO docket and other lawful fees for the petition. The
court, justice or judge shall docket the petition and act upon it
immediately.

Where can one file it?

The petition may be filed on any day and at any time with the
Regional Trial Court of the place where the threat, act or omission
was committed or any of its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the Supreme Court, or any
justice of such courts. The writ shall be enforceable anywhere in
the Philippines.

Source: Atty. Joan A. De Venecia (1st Placer, 2005 Bar), Lecture

on Bar Methods, July 26, 2008 // www.phbar.org

Judicial & Legal Ethics

May erroneous orders of judges be the subject of
disciplinary action?
Not one of the various orders complained of can, on their face,
be rightly tagged as unjust. It cannot be over-emphasized that
these orders were issued in a case over which Judge Reyes had
jurisdiction. Accordingly, complainants’ appropriate recourse
therefrom would have been to raise the issue of the validity of
such orders to the CA or this Court in a certiorari proceeding and
not in an administrative case. For, an administrative complaint is
not the appropriate remedy for every judicial act of a judge
deemed aberrant or irregular where a judicial remedy exists and
is available.

Militating further against the complaint is the fact that

there is no competent evidence to show that Judge Reyes

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issued the orders in question with malice or in bad faith or for

some fraudulent, corrupt or dishonest motive. At any event, the
respondent judge, or any public officer for that matter, is not
amenable to disciplinary action for his orders, even if erroneous,
if that be the case, absent proof that malice or bad faith
attended the issuance thereof.

Source: Munsayac v. Reyes, A.M. No. RTJ-05-1925, 26 June 2006

Legal Forms & Practical Exercises

Bar Matter No. 1922

03 June 2008

Upon the recommendation of the Committee on Legal Education

and Bar Matters, practicing members of the bar are now required
to indicate in all pleadings filed before the courts or quasi-judicial
bodies, the number and date of issue of their MCLE Certificate of
Compliance or Certificate of Exemption, as may be applicable, for
the immediately preceding compliance period. Failure to disclose
the required information would cause the dismissal of the case
and the expunction of the pleadings from the records.

The New Rule shall take effect sixty (60) days after its publication
in a newspaper of general circulation.

Libertas et Iusticia
Bar Academics Committee
2008-2009

For updates, visit www.libertas.ph

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