LCA LINES | Volume III, Issue No. 1

8/12/2019 LCA LINES | Volume III, Issue No. 1

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BIR ISSUANCES FOR THE MONTH OF JANUARY

JANUARY 2010VOLUME III, ISSUE No. 1

L C AL C AL C A

LINESLINESLINES

Inside this issue:

BIR issuancesfor the monthof January

2

COMELEC Res-olution No.8714

4

Republic Act9851

6

Republic Act9858

12

Jurisprudence 12

JLs Corner 18

(v) Export Development

Council; (vi) Tourism In-frastructure and Enterprise

Zone Authority; and (vii)

PHIVIDEC Industrial Au-

thority.

REVENUE MEMORAN-

DUM ORDER NO. 2-2010

REVENUE MEMORANDUM

ORDER NO. 2-2010 issuedon January 8, 2010amends certain provisionsof Revenue Memorandum(RMO) No. 4-2007, asamended by RMO Nos. 32-2008 and 8-2009, rela-tive to the limitation onthe amount and periodof acceptance of in-come and other tax pay-ments by Revenue Collec-tion Officers (RCOs) in are-as where there are Author-

ized Agent Banks.

Section II of RMO No. 32-2008, as amended by RMONo. 8-2009, was amendedto read as follows:

4. There shall beno limitation in theamount of cash orcheck to be accepted

as payment of annual

income taxes (BIRForm Nos. 1700, 1701and 1702) by RCOsduring the April incometax deadline.

However, for all the

other taxes to beaccepted, the issu-ance of Revenue Offi-cial Receipts (ROR)shall be limited onlyto tax payments, incash not exceeding

the amount of TwentyThousand Pesos (Php20,0000) per return.There shall be no limiton the amount if pay-ment is made thru

checks .

Section III Policies andGuidelines, Item No. 2.eof RMO No. 4-2007 waslikewise amended to readas follows:

e. For the annualincome tax payment

of individual taxpay-

ers as well as calen-

dar-period corporate

taxpayers, the issu-

ance of RORs shall

start five (5) working

REVENUE REGULATIONS

NO. 1-2010

REVENUE REGULATIONS

NO. 1-2010 issued on Janu-

ary 21, 2010 amends fur-

ther Section 3 of Revenue

Regulations (RR) No. 9-

2001, as last amended by

RR No. 10-2007, expanding

the coverage of taxpayers

required to file returns and

pay taxes through the

BIRs Electronic Filing and

Payment System (eFPS).

The coverage shall include

enterprises enjoying fiscal

incentives granted by other

government agencies such

as those registered with

the: (i) Philippine Economic

Zone Authority; (ii) Board

of Investments; (iii) various

zone authorities covered

under Republic Act No.

9400 (Subic Special Eco-nomic Zone, Clark Special

Economic Zone and Clark

Freeport Zone, Poro Point

Freeport Zone, Morong Spe-

cial Economic Zone, John

Hay Special Economic

Zone); (iv) Cagayan Special

Economic Zone Authority;


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days prior to and un-

til April 15.

REVENUE MEMORAN-DUM ORDER NO. 6-

2010

REVENUE MEMORANDUMORDER NO. 6-2010 is-sued on January 20,2010 prescribes the poli-cies and guidelines in thestamping of Income Tax

Returns (ITRs) and theattached audited finan-cial statements, and thenumber of copies of taxreturns to be submittedand filed.

All concerned offices,including AuthorizedAgent Banks (AABs),shall receive the ITR bystamping the official re-ceiving seal or stamp ofreceipt of an internal

revenue office where thesaid returns are filedon the space provided

for in the three (3)copies of the returns.

The attachments to theITR shall also be receivedin the same manner, butfor the attached financialstatements the sameshall be stamped re-ceived only on thepage of the Audit Cer-

tificate. Accordingly, theother pages of the finan-cial statements and itsattachments need notanymore be stampedreceived.

Taxpayer shall only

accomplish and file

three (3) copies of tax

BIR ISSUANCES

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returns with the AAB

and/or the BIR.

REVENUE MEMORAN-DUM ORDER NO. 7-

2010

REVENUE MEMORANDUMORDER NO. 7-2010 issuedon January 25, 2010 pre-scribes the guidelines andprocedures in handlingLetter Notices (LNs)

generated thru theTax Reconciliation Sys-tem (TRS) and Recon-ciliation of Listing forEnforcement System(RELIEF)/Third Party

Matching - Bureau ofCustoms (TPM-BOC) Da-ta Program for the Year2008, which shall coverthe Income, Value-Added,Percentage and Withhold-ing tax liabilities for taxa-ble year 2008 of indi-

vidual and corporatetaxpayers registeredunder the Large Tax-payers Service Regular,Excise and Large Taxpay-ers District Offices(LTDOs) and RevenueRegion Nos. 4 to 9.

LNs covering taxable year

2008 shall be deployedbased on the parametersset by the a) WithholdingTax Division (WTD) for

TRS-LN, together withthe Details of Withhold-ing Agents/Payors andPayees/Income RecipientReport (DWAPR), and theb) Audit Information, TaxExemptions and Incen-tives Division (AITEID) forRELIEF-LN, together withthe Details of Taxpayers

Customers/Suppliers(DTCS) and/or Details ofImportations with ReturnInformation Matching(DIRIM), via the Infor-

mation Delivery Portal(IDP), as the case maybe, and shall be ap-proved by the Commis-sioner of Internal Reve-nue (CIR), through theOverall Head LN TaskForce (LNTF).

TRS-LNs covering taxa-ble year 2008 shall be

consolidated with RELIEF-LNs and shall be han-dled by the same investi-gating office (RO whoshall handle TRS-LN shallbe the same RO to han-dle RELIEF-LN) whereinthe report of investiga-tion/verification shall beforwarded to the Officeof the Commissioner ofInternal Revenue(OCIR), Attention:Overall Head LNTF, for

proper disposition.

The LNTF/concerned in-vestigating offices shallprepare a Follow-up Let-ter and serve the sameto the taxpayer if no re-sponse was received af-ter 5 days from receiptby the taxpayer of the

LN. In the event a tax-payer who has been is-sued an LN refutes thediscrepancy, he/she/it

shall be given an oppor-tunity to reconcile his/her/its records withthose of the BIR within10 days from receipt ofhis/her/its LN and tosubmit documentaryproofs in support of his/her/its arguments.

If after 10 days fromreceipt of Follow-upLetter, no responsewas received from thetaxpayer, or he/she/it

fails to submit the re-quired documents afterfiling the protest withinthe 5-day period afterreceipt of the LN, theLNTF/concerned investi-gating office shall en-dorse the docket andrecommend to the OCIR(through the OverallHead LNTF) the issuance

of an issue-based Letterof Authority (LA) tocover specificallyIncome, Value-Added,Percentage and With-holding Taxes Due toDiscrepancy/ies Reflect-ed in the LN. A No-tice for Informal Confer-ence, together with the

LA, shall be served to thetaxpayer. If the taxpayerfails to settle his/her/itsIncome, Value-Added,

Percentage and With-holding Tax liabilities re-sulting from LN discrep-ancy/ies within 5 daysfrom receipt of Noticefor Informal Conferenceand LA, the LNTF/concerned investigatingoffice shall endorse the

docket to the OCIR,Attention: Overall HeadLNTF for any or a combi-nation of the followingactions:

a. The issuance of thePreliminary Assess-ment Notice (PAN)/Final AssessmentNotice (FAN) in ac-

cordance with theprovisions of Reve-nue Regulations (RR)No. 12-99;


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the OCIR, Attention:Overall Head LNTF forthe issuance of thePreliminary AssessmentNotice (PAN)/Final As-

sessment Notice (FAN)in accordance with theprovisions of RevenueMemorandum CircularNo. 23 2000.For LNs being handledby the Revenue DistrictOffice (RDO)/LargeTaxpayer Regular AuditDivisions (LTRAD)/LargeTaxpayers Excise Audit

Divisions (LTEAD)/LargeTaxpayers District Offic-es (LTDO) originallyassigned (with LAs is-sued whether the in-vestigation is on-goingor terminated) or as-sumed (referred by theLNTF), the respectiveinvestigating officesshall resolve the LN dis-crepancy within 30 days

from receipt of the origi-nal/referral assignments.

After the lapse of the 30-day period and there isno resolution or actiontaken, except when theinvestigation office rec-ommends for the admin-istrative sanction of sus-pension and temporaryclosure of business underRMO No. 3 2009 orrecommends for the is-

suance of an SDT, the LNwill be referred backwithout delay to the

LNTF, which shall imme-diately take-over thecase for resolution of theLN discrepancy.

For LNs being handled bythe LNTF, whether origi-nally assigned (LNs with-

out LAs) or assumed(referred by RDO/LTRAD/

LTEAD/LTDO), the LNTFshall resolve the LN dis-crepancy within 60 daysfrom receipt thereof. Af-ter the lapse of the 60-

day period and there isstill no resolution or ac-tion taken thereon, ex-cept when the investiga-tion office recommendsfor the administrativesanction of suspensionand temporary closure ofbusiness under RMO No.3 2009 or recommendsfor the issuance of an

SDT, the LN will be re-ferred, without delay, tothe appropriate investi-gating office, which hasjurisdiction over the prin-cipal place of business ofthe concerned taxpayerand such investigatingoffice shall immediatelytake-over the case for

resolution of the LN dis-crepancy.

Page 3VOLUME III, ISSUE No. 1

BIR ISSUANCES

b. If the under-declaration is 30%or more, the tax-payer may be rec-ommended for theimposition of ad-ministrative sanctionof suspension andtemporary closureof business in ac-cordance with theprovisions of RMO

No. 3 2009 (OplanKandado);

c. The issuance of thecompulsory processof Subpoena DucesTecum (SDT).

The issuance and en-forcement of the SDTmust be made in strictcompliance with theprocedures enunciated inRMO No. 35 - 1990 and

RMO No. 9 - 2003 re-quiring the taxpayer toappear before the

OVERALL HEAD LNTFthru the LN Secretariatfor the presentation orproduction of his booksof accounts and otheraccounting records. Ifthe taxpayer fails, refus-es or neglects to complywith the summons con-tained in the SDT, theLNTF/concerned investi-gating office shall en-dorse the docket tothe appropriate legal

office in the Nationalor Regional Offices un-der its respective juris-diction for the filing of acriminal case for viola-tion of Section 266 of theNIRC of 1997, as amend-ed. The investigatingteam/office shall likewiseendorse the docket to


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COMELEC RESOLUTION NO. 8714

RULES AND REGULA-TIONS ON THE: (1)

BEARING, CARRYING

OR TRANSPORTINGOF FIREARMS OR

OTHER DEADLY WEAP-ONS; AND (2) EM-PLOYMENT, AVAIL-MENT OR ENGAGE-MENT OF THE SER-

VICES OF SECURITYPERSONNEL OR BODY-GUARDS, DURING THE

ELECTION PERIODFOR THE MAY 10,

2010 NATIONAL ANDLOCAL ELECTIONS.

Who May Bear Fire-arms

During the election peri-od, no person shall bear,carry or transport fire-arms or other deadlyweapons in public places,including any building,street, park, private ve-hicle or public convey-ance, even if licensed topossess or carry the

same, unless authorizedin writing by the Com-mission. The issuance offirearms licenses shall besuspended during theelection period.Only regular members ofthe Philippine NationalPolice, the Armed Forcesof the Philippines andother law enforcementagencies of the Govern-ment who are duly depu-

tized in writing by the

Commission for electionduty may be authorizedto carry and possess fire-arms during the electionperiod: Provided, That,when in the possession

of firearms, the depu-tized law enforcementofficer must be: (a) infull uniform showingclearly and legibly his

name, rank and serialnumber, which shall re-main visible at all times,and (b) in the actual per-formance of this electionduty in the specific areadesigned by the Com-mission.

Other law enforcementagencies of the govern-

ment who can carry andpossess firearms duringthe election period shall

refer to:

1. Guards of the NationalBureau of Prisons, Pro-vincial, and City Jails;2. Members of the Bu-reau of Jail Managementand Penology;3. Members of the Cus-tom Enforcement and

Security and CustomsIntelligence and Investi-gation Service of the Bu-reau of Customs;

4. Port Police Depart-ment, Philippine Port Au-thority;5. Philippine EconomicZone Authority PoliceForce;6. Government guardforces;7. Law Enforcement

Agents and investigationAgents of the Bureau of

Immigration;8. Members of the ManilaInternational Airport Au-

thority (MIAA) PoliceForce;9. Members of the Mac-tan-Cebu InternationalAirport Authority(MCIAA) Police Force;10. Personnel of the lawEnforcement service ofthe land TransportationOffice (LTO);11. Members of the Phil-ippine Coast Guard, De-partment of Transporta-tion and Communication;

12. Members of the CebuPort Authority (CPA) Po-lice Force;13. Agents of ISOG ofthe Witness ProtectionProgram;14. Members of the Vide-ogram Regulatory Boardperforming law enforce-ment functions;15. Members of the Se-curity Investigation andTransport Department(STTD), Cash Depart-

ment (CD), includingmembers of the Office ofSpecial Investigation(OSI), Branch Operationsand Department of Gen-eral Services of theBangko Sentral ng Pilipi-nas;16. Personnel of the Of-fice of the sergeant-At-Arms (OSAA) of the Sen-ate or the House of Rep-resentatives and the

OSAA-certified / desig-

nated senators/congressmens securityescorts;17. Postal Inspectors,Investigators, Intelli-gence Officers and Mem-

bers of the InspectionService of the PhilippinePostal Corporation;18. Election Officers,Provincial Election Super-

visors, Regional Attor-neys, Assistant RegionalElection Directors, Re-

gional Election Directors,Directors III and IV,Lawyers in the Main Of-fice of the Commissionon Elections and theMembers of the Commis-sion;19. Members of the LawEnforcement Section ofthe Bureau of Fisheriesand Aquatic Resources;20. Members of theTourist Security Divisionof the Department of

Tourism;21. Personnel of the In-telligence Division of theCentral Management In-formation Office, Depart-ment of Finance;22. Personnel of the In-spection and Monitoringservice of the NationalPolice Commission;23. Personnel of theSpecial Action and Inves-tigation division, ForestOfficers defined under

PD 705 and Departmentof Environment and Nat-ural Resources (DENR)DAO No. 1997-32,Forest/Park Rangers,Wildlife Officers and allforest protection and lawenforcement officers ofthe DENR;24. Personnel of the In-telligence and Security,Office of the Secretary,Department of Foreign

Affairs;

25. Personnel of the Phil-ippine Drug EnforcementAgency;26. Personnel of the Phil-ippine Center for Trans-national Crime (PCTC);

27. Personnel of the Na-tional Intelligence Coor-dination Agency;28. Personnel of the Na-tional Bureau of Investi-


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The transport of firearmsof those who are engagedin the manufacture, im-portation, exportation,purchase, sale of fire-arms, explosives and theirspare parts or those in-volving the transportationof firearms, explosivesand their spare parts,may, with prior notice to

the Commission, be au-thorized by the DirectorGeneral of the PNP pro-vided that the firearms,explosives and their spare

parts are immediatelytransported to the Fire-arms and Explosives Divi-sion, CSG, PNP.

Definition of Terms

(a) Election Period re-fers to the election periodprescribed in ComelecResolution No. 8646 dat-ed 14 July 2009 which isfrom January 2010 to 09

June 2010;

(b) Firearmshall refer tothe "firearm" as defined inexisting laws, rules andregulations. The term alsoincludes airgun, airsoft

guns, and their replica/imitation in whateverform that can cause anordinary person to believethat they are real;

(c) Deadly weapon in-

cludes blade instrument,hand grenades or otherexplosives, except pyro-technics.A blade instrument is notcovered by the prohibitionwhen possession of theblade instrument is nec-essary to the occupationof the possessor or whenit is used as a tool for le-

gitimate activity.

Suspension of Issu-ance of Firearms Li-

censes.

The PNP is directed tosuspend the issuance offirearms licenses duringthe election period.

The processing and ap-proval of new firearmslicense, including re-newal of license, maycontinue on condition

that the new licenseand firearm shall bekept in deposit with theFirearms and ExplosivesDivision of the PNP untilafter the election peri-od.Firearms licenses issued

in violation of ComelecResolution 8714 are nulland void, without preju-dice to the filling of theappropriate administra-tive and/or criminal

charges against theholder or those respon-sible for the issuance ofthe license.

Who may be assigned

securitypersonnel or body-

guards

When circumstanceswarrant, including butnot limited to threats to

life and security, a can-didate to public office,including incumbentpublic officer, and pri-vate individual, may,upon application, beassigned regular mem-bers of the PNP or theAFP or the National Bu-reau of Investigation,and as augmentation,

During the election peri-od, no candidate for pub-lic office, including in-cumbent public officersseeking election to anypublic office, shall em-ploy, avail himself of orengage the services ofsecurity personnel orbodyguards, whether ornot such bodyguards are

regular members or of-ficers of the PhilippineNational Police, theArmed Forces of the Phil-ippines or other law en-

forcement agency of theGovernment: Provided,That when circumstanceswarrant, including butnot limited to threats tolife and security of a can-didate, he may be as-signed by the Commis-

sion, upon due applica-tion, regular members ofthe Philippine NationalPolice, the Armed Forcesof the Philippines or oth-er law enforcement

agency who shall provid-ed him security for theduration of the electionperiod. The officers as-signed for security dutyto a candidate shall besubject to the same re-

quirement as to wearingof uniforms prescribed inthe immediately preced-ing section unless ex-empted in writing by theCommission.If at any time during the

election period, theground for which the au-thority to engage theservices of security per-sonnel has been grantedshall cease to exist or forany other valid cause,the Commission shallrevoke the said authori-ty.

gation;29. Personnel of thePresidential Anti-Smuggling Group(PASG); and30. Field officers of theFertilizer and PesticideAuthority Department ofAgriculture.

(b) Member of pri-

vately owned oroperated security,investigative, pro-tective or intelli-gence agencies duly

authorized by thePNP, provided thatwhen in the posses-sion of firearm, heis; (1) in the agency-prescribed uniformwith agency-issuedidentification card

prominently dis-played and visible atall times, showingclearly his nameand position; and(2) in the actual

performance of dutyat his specifiedplace/area of duty.

The heads of other lawenforcement agenciesand Protective Agents of

Private Detective Agen-cies enumerated aboveshall, not later than 29December 2009, submita colored 4" x 5" pic-ture, with description,of the authorized uni-

form of the office, tothe Committee on theBan on Firearms andSecurity Personnel(CBFSP) herein estab-lished.

Security Personneland Bodyguards


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duly license/authorizedProtective Agents of pri-vate Detective Agencies,to provide security, forthe duration of the elec-tion period.All existing authoritygranting security person-nel or bodyguards arehereby revoked at thestart of the election peri-

od. The affected officialsof individuals who wantto continue to avail of orengage the services ofsecurity personnel or

bodyguard, shall applyfor the employment,availment, or engage-ment of security person-nel or bodyguards.

REPUBLIC ACT NO. 9851

AN ACT DEFININGAND PENALIZING

CRIMES AGAINST IN-TERNATIONAL HU-MANITARIAN LAW,

GENOCIDE AND OTH-ER CRIMES AGAINST

HUMANITY, OR-GANIZZING JURIS-

DICTION, DESIGNAT-ING SPECIAL COURTS,

AND FOR RELATEDPURPOSES

"Philippine Act onCrimes Against Inter-national Humanitarian

Law, Genocide, andOther Crimes Against

Humanity".

Definition of Terms

(a) "Apartheid' means

inhumane acts commit-ted in the context of aninstitutionalized regimeof systematic oppressionand domination by oneracial group or groupsand committed with theintention of maintainingthat regime(b) "Arbitrary deporta-tion or forcible transfer

of population" meansforced displacement ofthe persons concernedby expultion by expul-sion or other coerciveacts from the area in

which they are lawfullypresent, without groundspermitted under domes-tic or international law.(c) "Armed conflict"means any use of forceor armed violence be-

tween States or a pro-tracted armed violencebetween governmentalauthorities and organizedarmed groups or betweensuch groups within thatState: Provided, Thatsuch force or armed vio-lence gives rise, or maygive rise, to a situation towhich the Geneva Con-

ventions of 12 August1949, including their com-mon Article 3, apply.Armed conflict may beinternational, that is, be-tween two (2) or more

States, including belliger-ent occupation; or non-international, that is, be-tween governmental au-thorities and organizedarmed groups or betweensuch groups within a

state. It does not coverinternal disturbances ortensions such as riots,isolated and sporadic actsof violence or other actsof a similar nature.(d) "Armed forces" meansall organized armed forc-es, groups and units thatbelong to a party to anarmed conflict which are

under a command respon-sible to that party for theconduct of its subordi-nates. Such armed forcesshall be subject to an in-ternal disciplinary system

which enforces compli-ance with InternationalHumanitarian Law(e) "Attack directedagainst any civilian popu-lation" means a course ofconduct involving the


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multiple commission ofacts referred to in Section6 of this Act against anycivilian population, pursu-

ant to or in furtherance ofa State or organizationalpolicy to commit such at-tack.(f) "Effective commandand control" or " effectiveauthority and control"

means having the materi-al ability to prevent andpunish the commission ofoffenses by subordinates.(g) "Enforced or involun-tary disappearance of

persons" means the ar-rest, detention, or abduc-tion of persons by, or withthe authorization supportor acquiescence of, aState or a political organi-zation followed by a re-

fusal to acknowledge thatdeprivation of freedom orto give information on thefate or whereabouts ofthose persons, with theintention of removingfrom the protection of thelaw for a prolonged periodof time(h) "Enslavement" meansthe exercise of any or allof the powers attaching tothe right of ownership

over a person and in-cludes the exercise ofsuch power in the courseof trafficking in persons,in particular women andchildren.(i) "Extermination" meansthe international inflictionof conditions of life, interalia, the deprivation ofaccess to food and medi-cine, calculated to bringabout the destruction of apart of a population.(j) " Forced pregnancy"means the unlawful con-finement of a women tobe forcibly made preg-nant, with the intent of

adverse party;(4) a person who, be-fore the beginning ofhostilities, was consid-

ered a stateless personor refugee under therelevant internationalinstruments acceptedby the parties to theconflict concerned orunder the national leg-

islation of the state ofrefuge or state of resi-dence;(5) a member of themedical personnel as-signed exclusively to

medical purposes or tothe administration ofmedical units or to theoperation of or admin-istration of medicaltransports; or(6) a member of the

religious personnel whois exclusively engagedin the work of theirministry and attachedto the armed forces ofa party to the conflict,its medical units ormedical transports, ornon-denominational,noncombatant militarypersonnel carrying outfunctions similar toreligious personnel.

(r) " Superior" means:(1) a military com-mander or a personeffectively acting as amilitary commander;or(2) any other superior,in as much as thecrimes arose from ac-tivities within the effec-tive authority and con-trol of that superior.

(s) "Torture" means theintentional infliction ofsevere pain or suffering,whether physical, men-tal, or psychological, up-on a person in the custo-dy or under the control

Page 7 L C A LINES

spare the life of anybody,even of persons manifest-ly unable to defend them-selves or who clearly ex-

press their intention tosurrender.(o) "Perfidy" means actswhich invite the confi-dence of an adversary tolead him/her to believehe/she is entitled to, or is

obliged to accord, protec-tion under the rules ofInternational Humanitari-an Law, with the intent tobetray that confidence,including but not limited

to:(1) feigning an intent tonegotiate under a flagof truce;(2) feigning surrender;(3) feigning incapacita-tion by wounds or sick-

ness;(4) feigning civilian ornoncombatant status;and(5) feigning protectivestatus by use of signs,emblems or uniforms ofthe United Nations or ofa neutral or other Statenot party to the conflict.

(p) "Persecution" meansthe international and se-vere deprivation of funda-

mental rights contrary tointernational law by rea-son of identity of thegroup or collectivity.(q) "Protect person" in anarmed conflict means:

(1) a person wounded,sick or shipwrecked,whether civilian or mili-tary;(2) a prisoner of war orany person deprived ofliberty for reasons relat-ed to an armed conflict;(3) a civilian or any per-son not taking a directpart or having ceased totake part in the hostili-ties in the power of the

affecting the ethnic com-position of any popula-tion carrying out othergrave violations of inter-

national law.(k) "Hors de Combat"means a person who:

(1) is in the power ofan adverse party;(2) has clearly ex-pressed an intention to

surrender; or(3) has been renderedunconscious or other-wise incapacitated bywounds or sicknessand therefore is inca-

pable of defendinghimself: Provided, thatin any of these cases,the person form anyhostile act and doesnot attempt to escape.

(l) "Military necessity"

means the necessity ofemploying measureswhich are indispensableto achieve a legitimateaim of the conflict andare not otherwise prohib-ited by International Hu-manitarian Law(m) "Non-defended local-ity" means a locality thatfulfills the following con-ditions:

(1) all combatants, as

well as mobile weaponsand mobile militaryequipment, must havebeen evacuated;(2) no hostile use offixed military installa-tions or establishmentsmust have been made;(3) no acts of hostilitymust have been com-mitted by the authori-ties or by the popula-tion; and(4) no activities in sup-port of military opera-tions, must have beenundertaken.

(n) "No quarter will begiven' means refusing to


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of the accused; exceptthat torture shall notinclude pain or sufferingarising only from, inher-

ent in or incidental to,lawful sanctions.(t) "Works and installa-tions containing danger-ous forces" meansworks and installationsthe attack of which maycause the release ofdangerous forces andconsequent severe loss-es among the civilianpopulation, namely:dams, dikes, and nucle-ar, electrical generationstations.

War Crimes. - For thepurpose of this Act,"war crimes" or "crimesagainst InternationalHuman HumanitarianLaw" means:

(a) In case of an inter-national armed conflict,grave breaches of theGeneva Conventions of12 August 1949, name-ly, any of the followingacts against persons orproperty protected un-der provisions of therelevant Geneva Con-vention:

(1) Willful killing;(2) Torture or inhu-man treatment, in-cluding biological ex-periments;(3) Willfully causinggreat suffering, orserious injury to bodyor health;(4) Extensive destruc-tion and appropriationof property not justi-fied by military neces-

sity and carried outunlawfully and wan-tonly;(5) Willfully deprivinga prisoner of war orother protected per-son of the rights offair and regular trial;

(6) Arbitrary deporta-tion or forcible transferof population or unlaw-ful confinement;

(7) Taking of hostages;(8) Compelling a prison-er a prisoner of war orother protected personto serve in the forces ofa hostile power; and(9) Unjustifiable delay

in the repatriationof prisoners of waror other protectedpersons.

(b) In case of a non-international armed con-flict, serious violations ofcommon Article 3 to thefour (4) Geneva Conven-tions of 12 August 1949,namely , any of the fol-lowing acts committedagainst persons taking noactive part in the hostili-ties, including member ofthe armed forces whohave laid down their armsand those placed hors decombat by sickness,wounds, detention or anyother cause;

(1) Violence to life andperson, in particular,willful killings, mutila-tion, cruel treatmentand torture;(2) Committing outrag-es upon personal digni-ty, in particular, humili-ating and degradingtreatment;(3) Taking of hostages;and(4) The passing of sen-tences and the carryingout of executions with-out previous judgmentpronounced by a regu-larly constituted court,

affording all judicialguarantees which aregenerally recognized asindispensable.(c) Other serious viola-tions of the laws andcustoms applicable inarmed conflict, within

the established frame-work of internationallaw, namely:(1) Internationally di-

recting attacks againstthe civilian populationas such or against indi-vidual civilians not tak-ing direct part in hostili-ties;(2) Intentionally direct-ing attacks against civil-ian objects, that is, ob-ject which are not mili-tary objectives;(3) Intentionally direct-ing attacks againstbuildings, material,medical units andtransport, and person-nel using the distinctiveemblems of the GenevaConventions or Addi-tional Protocol III inconformity with inten-tional law;(4) Intentionally direct-ing attacks against per-sonnel, installations,material, units or vehi-cles involved in a hu-manitarian assistance orpeacekeeping mission inaccordance with theCharter of the UnitedNations, as ling as theyare entitled to the pro-tection given to civiliansor civilian objects underthe international law ofarmed conflict;(5) Launching an attackin the knowledge thatsuch attack will causeincidental loss of life orinjury to civilians ordamage to civilian ob-jects or widespread,long-term and severedamage to the naturalenvironment which

would be excessive inrelation to the concreteand direct military ad-vantage anticipated;(6) Launching an attackagainst works or instal-lations containing dan-gerous forces in the

knowledge that suchattack will cause exces-sive loss of life, injury tocivilians or damage to

civilian objects, andcausing death or seriousinjury to body orhealth .(7) Attacking or bom-barding, by whatevermeans, towns, villages,dwellings or buildingswhich are undefendedand which are not mili-tary objectives, or mak-ing non-defended locali-ties or demilitarizedzones the object of at-tack;(8) Killing or woundinga person in theknowledge that he/sheis hors de combat, in-cluding a combatantwho, having laid downhis/her arms or no long-er having means of de-fense, has surrenderedat discretion;(9) Making improperuse of a flag of truce, ofthe flag or the militaryinsignia and uniform ofthe enemy or of theUnited Nations, as wellas of the distinctive em-blems of the GenevaConventions or otherprotective signs underInternational Humani-tarian Law, resulting indeath, serious personalinjury or capture;(10) Intentionally di-recting attacks againstbuildings dedicated toreligion, education, art,science or charitablepurposes, historic mon-uments, hospitals andplaces where the sick

and wounded are col-lected, provided theyare not military objec-tives. In case of doubtwhether such buildingor place has been usedto make an effectivecontribution to military


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action, it shall be pre-sumed not to be soused;(11) Subjecting persons

who are in the power ofan adverse party tophysical mutilation or tomedical or scientific ex-periments of any kind,or to removal of tissueor organs for transplan-tation, which are neitherjustified by the medical,dental or hospital treat-ment of the person con-cerned nor carried outin his/her interest, andwhich cause death to orseriously endanger thehealth of such person orpersons;(12) Killing, woundingor capturing an adver-sary by resort to perfi-dy;(13) Declaring that noquarter will be given;(14) Destroying or seiz-ing the enemy's proper-ty unless such destruc-tion or seizure is imper-atively demanded bythe necessities of war;(15) Pillaging a town orplace, even when takenby assault;(16) Ordering the dis-placements of the civil-ian population for rea-sons related to the con-flict, unless the securityof the civilians involvedor imperative militaryreasons so demand;(17) Transferring, di-rectly or indirectly, bythe occupying power ofparts of its own civilianpopulation into the terri-tory it occupies, or thedeportation or transfer

of all or parts of thepopulation of the occu-pied territory within oroutside this territory;(18) Committing out-rages upon personaldignity, in particular,humiliating and degrad-

ing treatments;(19) Committing rape,sexual slavery, enforcedprostitution, forced

pregnancy, enforcedsterilization, or any oth-er form of sexual vio-lence also constituting agrave breach of the Ge-neva Conventions or aserious violation of com-mon Article 3 to the Ge-neva Conventions;(20) Utilizing the pres-ence of a civilian or oth-er protected person torender certain points,areas or military forcesimmune from militaryoperations;(21) Intentionally usingstarvation of civilians asa method of warfare bydepriving them of ob-jects indispensable totheir survival, includingwillfully impeding reliefsupplies as provided forunder the Geneva Con-ventions and their Addi-tional Protocols;(22) In an internationalarmed conflict, compel-ling the nationals of thehostile party to takepart in the operations ofwar directed againsttheir own country, evenif they were in the bel-ligerent's service beforethe commencement ofthe war;(23) In an internationalarmed conflict, declar-ing abolished, suspend-ed or inadmissible in acourt of law the rightsand actions of the na-tionals of the hostileparty;(24) Committing any of

the following acts:(i) Conscripting, en-listing or recruitingchildren under the ageof fifteen (15) yearsinto the nationalarmed forces;(ii) Conscripting, en-

listing or recruitingchildren under the ageof eighteen (18) yearsinto an armed force or

group other than thenational armed forc-es; and(iii) Using childrenunder the age ofeighteen (18) years toparticipate actively inhostilities; and

(25) Employing meansof warfare which areprohibited under inter-national law, such as:

(i) Poison or poisonedweapons;(ii) Asphyxiating, poi-sonous or other gas-es, and all analogousliquids, materials ordevices;(iii) Bullets which ex-pand or flatten easilyin the human body,such as bullets withhard envelopes whichdo not entirely coverthe core or arepierced with incisions;and(iv) Weapons, projec-tiles and material andmethods of warfarewhich are of the na-ture to cause super-fluous injury or un-necessary suffering orwhich are inherentlyindiscriminate in vio-lation of the interna-tional law of armedconflict.

Any person found guilty ofcommitting any of theacts specified herein shallsuffer the penalty provid-ed under Section 7 of thisAct.

Genocide (a) "genocide"means any of the follow-ing acts with intent todestroy, in whole or inpart, a national, ethnic,racial, religious, social orany other similar stableand permanent group as

such:(1) Killing membersof the group;(2) Causing serious

bodily or mentalharm to members ofthe group;(3) Deliberately in-flicting on the groupconditions of lifecalculated to bringabout its physicaldestruction in wholeor in part;(4) Imposingmeasures intendedto prevent birthswithin the group;and(5) Forcibly trans-ferring children ofthe group to anoth-er group.

(b) It shall be unlawfulfor any person to direct-ly and publicly inciteothers to commit geno-cide.

Any person found guiltyof committing any ofthe acts specified inparagraphs (a) and (b)of this section shall suf-fer the penalty providedunder Section 7 of thisAct.

Other Crimes AgainstHumanity. - "othercrimes against humani-ty" means any of thefollowing acts whencommitted as part of awidespread or system-atic attack directedagainst any civilian pop-ulation, with knowledgeof the attack:

(a) Willful killing;

(b) Extermination;(c) Enslavement;(d) Arbitrary deporta-tion or forcible trans-fer of population;(e) Imprisonment orother severe depriva-tion of physical liberty

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in violation of funda-mental rules of interna-tional law;

(f) Torture;(g) Rape, sexual slav-ery, enforced prostitu-tion, forced pregnancy,enforced sterilization, orany other form of sexualviolence of comparablegravity;(h) Persecution againstany identifiable group orcollectivity on political,racial, national, ethnic,cultural, religious, gen-der, sexual orientationor other grounds thatare universally recog-nized as impermissibleunder international law,in connection with anyact referred to in thisparagraph or any crimedefined in this Act;(i) Enforced or involun-tary disappearance ofpersons;(j) Apartheid; and(k) Other inhumaneacts of a similar charac-ter intentionally causinggreat suffering, or seri-ous injury to body or tomental or physicalhealth.

Any person found guilty ofcommitting any of theacts specified herein shallsuffer the penalty provid-ed under Section 7 of thisAct.

Individual Criminal Re-sponsibilities. - (a) Inaddition to existing provi-sions in Philippine law onprinciples of criminal re-sponsibility, a person shall

be criminally liable asprincipal for a crime de-fined and penalized in thisAct if he/she:

(1) Commits such acrime, whether as anindividual, jointly withanother or through an-

other person, regard-less of whether thatother person is crimi-

nally responsible;(2) Orders, solicits orinduces the commis-sion of such a crimewhich in fact occurs oris attempted;(3) In any other waycontributes to the com-mission or attemptedcommission of such acrime by a group ofperson acting with acommon purpose. Suchcontribution shall beintentional and shalleither:

(i) be made with theaim of furthering thecriminal activity orcriminal purpose ofthe group, wheresuch activity or pur-pose involves thecommission of acrime defined in thisAct; or(ii) be made in theknowledge of theintention of thegroup to commit thecrime.

(b) A person shall becriminally liable as ac-complice for facilitatingthe commission of acrime defined and penal-ized in this Act if he/sheaids, abets or otherwiseassists in its commissionor attempted commis-sion, including providingthe means for its com-mission.(c) A person shall becriminally liable for acrime defined and penal-ized in this Act if he/she

attempts to commit sucha crime by taking actionthat commences its exe-cution by means of asubstantial step, but thecrime does not occurbecause of circumstanc-es independent of the

person's intention. How-ever, a person whoabandons the effort to

commit the crime or oth-erwise prevents the com-pletion of the crime shallnot be liable for punish-ment under this Act forthe attempt to committhe same if he/she com-pletely and voluntarilygave up the criminal pur-pose.

Responsibility of Su-periors. - In addition toother grounds of criminalresponsibility for crimesdefined and penalizedunder this Act, a superiorshall be criminally re-sponsible as a principalfor such crimes commit-ted by subordinates un-der his/her effectivecommand and control, oreffective authority andcontrol as the case maybe, as a result of his/herfailure to properly exer-cise control over suchsubordinates, where:

(a) That superior eitherknew or, owing to thecircumstances at thetime, should have knownthat the subordinateswere committing orabout to commit suchcrimes;(b) That superior failedto take all necessary andreasonable measureswithin his/her power toprevent or repress theircommission or to submitthe matter to the compe-tent authorities for in-

vestigation and prosecu-tion.

Non-prescription. -The crimes defined andpenalized under this Act,their prosecution, andthe execution of sentenc-

es imposed on their ac-count, shall not be subjectto any prescription.

Orders from a Superior.- The fact that a crimedefined and penalized un-der this Act has beencommitted by a personpursuant to an order of agovernment or a superior,whether military or civil-ian, shall not relieve thatperson of criminal respon-sibility unless all of thefollowing elements occur:

(a) The person was undera legal obligation to obeyorders of the governmentor the superior in ques-tion;(b) The person did notknow that the order wasunlawful; and(c) The order was notmanifestly unlawful.

Orders to commit geno-cide or other crimesagainst humanity aremanifestly unlawful.

Protection of Victimsand Witnesses. - In ad-dition to existing provi-sions in Philippine law forthe protection of victimsand witnesses, the follow-ing measures shall be un-dertaken:

(a) The Philippine courtshall take appropriatemeasures to protect thesafety, physical and phys-iological well-being, digni-ty and privacy of victimsand witnesses. In so do-ing, the court shall haveregard of all relevant fac-

tors, including age, gen-der and health, and thenature of the crime, inparticular, but not limitedto, where the crime in-volves sexual or genderviolence or violenceagainst children. The

VOLUME III, ISSUE No. 1 Page 10


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prosecutor shall take suchmeasures particularly dur-ing the investigation andprosecution of such

crimes. These measuresshall not be prejudicial toor inconsistent with therights of the accused andto a fair and impartial tri-al;(b) As an exception to thegeneral principle of publichearings, the court may,to protect the victims andwitnesses or an accused,conduct any part of theproceedings in camera orallow the presentation ofevidence by electronic orother special means. Inparticular, such measuresshall be implemented inthe case of the victim ofsexual violence or a childwho is a victim or is awitness, unless otherwiseordered by the court,having regard to all thecircumstances, particular-ly the views of the victimor witness;(c) Where the personalinterests of the victimsare affected, the courtshall permit their viewsand concerns to be pre-sented and considered atstages of the proceedingsdetermined to be appro-priate by the court inmanner which is not prej-udicial to or inconsistentwith the rights of the ac-cused and a fair and im-partial trial. Such viewsand concerns may be pre-sented by the legal repre-sentatives of the victimswhere the court considersit appropriate in accord-ance with the established

rules of procedure andevidence; and(d) Where the disclosureof evidence or informationpursuant to this Act maylead to the grave endan-germent of the security ofa witness for his/her fami-

ly, the prosecution may,for the purposes of anyproceedings conductedprior to the commence-

ment of the trial, withholdsuch evidence or infor-mation and instead sub-mit a summary thereof.Such measures shall beexercised in a mannerwhich is not prejudicial toor inconsistent with therights of the accused andto a fair and impartial tri-al.

Jurisdiction.- The Stateshall exercise jurisdictionover persons, whethermilitary or civilian, sus-pected or accused of acrime defined and penal-ized in this Act, regardlessof where the crime iscommitted, provided, anyone of the following con-ditions is met:

(a) The accused is a Filipi-no citizen;(b) The accused, regard-less of citizenship or resi-dence, is present in thePhilippines; or(c) The accused has com-mitted the said crimeagainst a Filipino citizen.

In the interest of justice,the relevant Philippineauthorities may dispensewith the investigation orprosecution of a crimepunishable under this Actif another court or inter-national tribunal is al-ready conducting the in-vestigation or undertakingthe prosecution of suchcrime. Instead, the au-

thorities may surrender orextradite suspected oraccused persons in thePhilippines to the appro-priate international court,if any, or to another Statepursuant to the applicableextradition laws and trea-

ties.No criminal proceedingsshall be initiated againstforeign nationals suspect-

ed or accused of havingcommitted the crimes de-fined and penalized in thisAct if they have beentried by a competentcourt outside the Philip-pines in respect of thesame offense and acquit-ted, or having been con-victed, already servedtheir sentence.

Philippine Court, Prose-cutors and Investiga-tors. - The Regional TrialCourt of the Philippinesshall have original andexclusive jurisdiction overthe crimes punishableunder this Act. Their judg-ments may be appealedor elevated to the Courtof Appeals and to the Su-preme Court as providedby law.

The Supreme Court shalldesignate special courtsto try cases involvingcrimes punishable underthis Act. For these cases,the Commission on Hu-man Rights, the Depart-ment of Justice, the Phil-ippine National Police orother concerned law en-forcement agencies shalldesignate prosecutors orinvestigators as the casemay be.

The State shall ensurethat judges, prosecutorsand investigators, espe-cially those designated forpurposes of this Act, re-

ceive effective training inhuman rights, Interna-tional Humanitarian Lawand International CriminalLaw.

AN ACT PROVIDING

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FOR THE LEGITIMA-TION OF CHILDREN

BORN TO PARENTS BE-

LOW MARRYING AGE,AMENDING FOR THEPURPOSE THE FAMILYCODE OF THE PHILIP-PINES, AS AMENDED

Article 177 of ExecutiveOrder No. 209, otherwiseknown as the "FamilyCode of the Philippines",as amended, is herebyfurther amended to readas follows:

"Art. 177. Children con-ceived and born outside

of wedlock of parentswho, at the time of con-ception of the former,

were not disqualified byany impediment to marryeach other, or were sodisqualified only becauseeither or both of themwere below eighteen (18)years of age, may be le-gitimated."

"Art. 178. Legitimationshall take place by a sub-sequent valid marriagebetween parents. The an-nulment of a voidable

marriage shall not affectthe legitimation."

Implementing RulesThe civil Registrar General

shall, in consultation withthe chairpersons of theCommittee on Revision ofLaws of the House of Rep-resentatives and theCommittee on Youth,Women and Family Rela-tions of the Senate, the

Council for the Welfare ofChildren, the Departmentof Justice (DOJ), the De-

partment of Foreign Af-fairs (DFA), the office ofthe Supreme Court Ad-ministrator, the PhilippineAssociation of Civil Regis-trars (PACR) and the UPLaw Center, issue thenecessary rules/regulations for the effec-tive implementation ofthis Act not later than one(1) month from its effec-tivity.

RA 9858

LATEST JURISPRUDENCE

PEOPLE OF THE PHIL-IPPINES

vs.MARLON BARSAGA

ABELLAG.R. No. 177295January 6, 2010

FACTS: That sometimeon December 1999, atBarangay San Vicente,Camarines Sur, accusedMarlon Abella (Abella),while armed withBalisong and under theinfluence of liquor, en-tered the house of com-plainant AAA and thenand there had sexual in-

tercourse with her, awoman of feeble mind,against her will. Conceal-ing the said incident toher parents, after severalmonths, it was confirmedthat AAA was pregnant.Consequently she gavebirth to a baby girl.

ISSUES: (1) Whether ornot the trial court gravelyerred in convicting Abellaof the crime charged alt-hough his actual partici-

pation in the alleged actwas not proven with cer-tainty;(2) Whether or not Abellashould be convicted forqualified rape.

RULING: The trial courtdid not err in convictingAbella of the crimecharged although his ac-tual participation in thealleged act was not prov-

en with certainty.

Article 266-A of the Re-vised Penal Code providesthat the crime of rape iscommitted by a man hav-ing carnal knowledge of awoman under any of thefollowing circumstances:(1) through force, threat

or intimidation; (2) whenthe offended party is de-prived of reason or other-wise unconscious; (3) by

means of fraudulentmachination or graveabuse of authority; and

(4) when the offendedparty is under 12 years ofage or is demented, eventhough none of the cir-cumstances mentionedabove be present.

The prosecution has es-tablished beyond reasona-ble doubt that the Abellahad carnal knowledge ofAAA, a demented person,through force, threat orintimidation. AAA was

psychiatrically evaluatedas an adult woman withthe mental age of a 7 to 8-year old child and thatshe gave birth to a childdespite her mental inabil-ity to give her consent toa sexual relationship.These facts support theallegation of sexualabuse. AAA also identi-

fied without uncertaintyAbella as her attacker andrelated distinctly that heforcibly laid her down,

held her at knifepoint,and sexually abused her.

By well-entrenched juris-prudence, the issue ofcredibility of witnesses isa question best ad-dressed to the province ofthe trial court because ofits unique position of hav-

ing observed that elusiveand incommunicable evi-dence of the witnesses'deportment on the standwhile testifying which op-portunity is denied to the

appellate courts andabsent any substantialreason which would justi-fy the reversal of the trialcourt's assessments andconclusions, the reviewingcourt is generally bound

by the former's findings,particularly when no sig-nificant facts and circum-stances are shown to



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have been overlooked ordisregarded which whenconsidered would haveaffected the outcome of

the case.

As to the second issue,Abella should not be con-victed for qualified rape.

The criminal informationfailed to allege the quali-fying circumstance thatAbella knew of the mentaldisability of AAA, thus, hisconviction of statutory orsimple rape committed

with the use of a deadlyweapon, instead of quali-fied rape, is in order.

MATEO R. NOLLEN, JR.

vs.COMMISSION ON ELEC-

TIONS andSUSANA M. CABALLES

G.R. No. 187635

January 11, 2009

FACTS: Susana M. Ca-balles (Caballes) andMateo R. Nollen, Jr.(Nollen) were candidatesfor punong barangay in

the October 2007 baran-gay elections. Havinggarnered 456 votes asagainst the 448 votes Ca-balles obtained, Nollenwas declared as thepunongbarangay-elect.

Dissatisfied with the re-sult, Caballes institutedan election protest withthe Municipal Trial Court

(MTC) in Quezon.

The MTC rendered a deci-sion declaring protestantCaballes as punong ba-rangay-elect.

Nollen filed his notice ofappeal and paid the MTCthe appeal fee of P 1,000.

The First Division of theCOMELEC dismissed Nol-lens appeal for his failureto pay the appeal fee of P3,000.

Nollen moved for recon-sideration.

The COMELEC En Bancdenied Nollens motion forreconsideration.

ISSUE: Whether or notNollens petition be grant-ed.

RULING: Nollens petitionshould be granted.

Payment of appeal fees inappealed election protestcases is now separatelyrequired by the Rules of

Court and Sec. 3, Rule 40of the COMELEC Rules ofProcedure, as amendedby Resolution No. 02-0130, Series of 2002, asituation not obtainingpreviously. The Court,thus, deems it right to putthings in proper perspec-tive.

A.M. No. 07-4-15-SC pro-vides for the Rules of

Procedure in Election Con-tests Before the CourtsInvolving Elective Munici-pal and Barangay Offi-cials. Among otherthings, it required thepayment of a PhP 1,000appeal fee upon the filingof a notice of appeal.Secs. 8 and 9 of A.M. No.07-4-15-SC provide:

SEC. 8. Appeal.Anaggrieved party mayappeal the decisionto the [COMELEC]within five (5) daysafter promulgation,by filing a notice ofappeal with the courtthat rendered thedecision x x x.

SEC. 9. Appeal fee.The appellant in an

election contest shallpay to the court thatrendered the decisionan appeal fee of OneThousand Pesos (PhP1,000), simultane-ously with the filingof the notice of ap-peal.

In a bid to untangle theconfusion in the imple-mentation of its procedur-

al rules engendered bythe requirement of appealfees separately assessedunder the Rules of Courtand its Rules of Proce-dures, the COMELEC is-sued on July 15, 2008Resolution No. 8486,providing as follows:

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That if the appellanthad already paid theamount of PhP 1,000before the Regional

Trial Court, x x x[MTC] x x x withinthe five-day period,pursuant to Section9, Rule 14 of theRules of Procedure onElection Contests Be-

fore the Court Involv-ing Elective Municipaland Barangay Offi-cials (Supreme CourtAdministrative OrderNo. 07-4-15) and his

Appeal is given duecourse by the Court,said appellant is re-quired to pay theCOMELEC appeal feeof P3,200.00 x x xwithin a period of

fifteen (15) daysfrom the time of filingof the Notice of Ap-peal with the lowercourt. If no paymentis made within theprescribed period,the appeal shall bedismissed pursuantto Section 9(a) ofRule 22 of the COME-LEC Rules of Proce-dure.

SEC. 9 Grounds forDismissal of Appeal.The appeal may bedismissed x x x (a)for failure to pay thecorrect appeal fee x xx.

2. That if the appel-lant failed to pay thePhP 1,000-appeal feewith the lower courtwithin the five-dayperiod as prescribedby the SupremeCourt New Rules ofProcedure, but the

case was nonethelesselevated to the Com-mission, the appealshall be dismissed

outright. x x x(Emphasis added.)

Since Nollen paid the ap-peal fee of PhP 1,000 sim-ultaneously with his filingof his notice of appeal,the appeal is consideredperfected pursuant toCOMELEC Resolution No.8654. Again, Nollensfailure to pay the remain-

ing PhP 3,200 within theprescribed period cannotbe taken against him,since the COMELEC failedto notify him regardingthe additional appeal fee,as provided by ResolutionNo. 8654. Although Nol-

len, following supersededjurisprudence, failed topay the filing fee on time,he nonetheless voluntarilypaid the remaining PhP3,200 appeal fee. He re-

mitted the amount ofP3,200, which, applyingextant rules and prevail-ing jurisprudence, cannotbe considered as havingbeen belatedly paid.Hence, his petition should

be given due course.

WELFREDO CENEZE

vs.FELICIANA RAMOS

G.R. No. 172287

January 15, 2010

FACTS: Welfredo Ceneze(Ceneze) alleged that in1981, Julian Ceneze Sr.

(Ceneze Sr.), Cenezesfather, transferred histenurial rights over thelandholding to him with

the consent and approvalof Feliciana Ramos(Ramos) and that, sincethen, Ceneze had been inactual and peaceful pos-session of the landholdinguntil Ramos forcibly en-

tered and cultivated theland for the purpose ofdispossessing Ceneze ofhis right as tenant.

The Provincial Adjudicatorrendered a decision infavor of Ceneze.

The Department of Agrari-an Reform AdjudicationBoard (DARAB) affirmedthe decision of the Provin-cial Adjudicator.

The CA resolved the peti-tion in favor of Ramos,the landowner and dis-missed Cenezes com-plaint.

ISSUE: Whether or notthere is a tenancy rela-

tionship between Ramosand Ceneze.

RULING: There is notenancy relationship be-tween Ramos and Ceneze.Ceneze failed to establishthe existence of a tenancyrelationship between himand Ramos. To prove atenancy relationship, therequisite quantum of evi-dence is substantial evi-dence, or such relevantevidence as a reasonablemind might accept as ad-equate to support a con-clusion. The Certificationof the BARC Chairmanand the affidavits ofCeneze, Sr. and of the

tenants of the adjacentlandholdings certainly donot suffice. By them-selves, they do not show

that the elements of con-sent of the landowner andof sharing of harvests arepresent.

To establish consent,Ceneze presented the Af-fidavit executed byCeneze, Sr. However, theaffidavit which was notnotarizedcannot be giv-en credence consideringthat it was not authenti-cated. It is self-servingand unreliable. Thereshould have been othercorroborative evidenceshowing that Ramos con-sented to and approved ofthe transfer of tenurialrights to Ceneze.A tenancy relationship

cannot be pre-

sumed. There must be

evidence to prove the

presence of all its indis-

pensable elements, wit:

(1) the parties are the

landowner and the ten-

ant; (2) the subject is

agricultural land; (3)

there is consent by the

landowner; (4) the pur-

pose is agricultural pro-

duction; (5) there is per-

sonal cultivation; and (6)

there is sharing of the

harvest. The absence of

one element does not

make an occupant of aparcel of land, its cultiva-

tor or planter, a de jure

tenant.


15/18

counsel. In 2002 the NMPcompleted the revision ofthe Qualification Standard(QS) for its staff.

In 2003 the Human Re-sources Management Sec-tion of NMP wrote to Mac-eda, advising him that theschool would be puttinghim under contractualemployment from January2003 or until such time asthe Civil Service Commis-sion (CSC) shall have al-ready approved the NMPMaritime Training RevisedQualification Standard.

On March 2003 the NMPExecutive Director, Noriel

Devanadera(Devanadera), wrote Mac-eda, informing him thathis temporary appoint-ment as Professor I wasbeing renewed effectiveon April 2003 and that thesucceeding renewal of hisappointment would besubject to his meeting therequirements of the posi-tion.

Meanwhile, Maceda ap-plied from 2001 to 2003for the position of Admin-istrative Officer V whichthen remained vacant.But an OIC was insteadappointed to that position.

In 2001 the NMP advisedall employees occupyingnext-in-rank positions tothe Deputy Executive Di-rector (DED) III to submittheir updated PersonalData Sheets (PDS) forevaluation as candidatesto that position. Macedabelatedly submitted his

updated PDS for evalua-tion.

On December 2003, theNMP OIC wrote Maceda,informing him that hisappointment as ProfessorI would be renewed oncontractual status effec-tive from January 2004.Maceda agreed andsigned a contract of em-ployment on January2004. On the same date,however, Maceda filed acomplaint with the CSCregarding his demotion inemployment status.

On June 2004 the NMPOIC informed Maceda

that, on instructions fromDevanadera, he was notto report for work any-more on the followingday. On July 2004, how-ever, Devanadera askedMaceda to be a guest lec-turer in Maritime Law,thus acknowledging theneed for his services andhis expertise on the sub-ject.

Maceda charged Deva-nadera and NMP beforethe Department of Laborand Employment (DOLE)of oppression leading tohis illegal termination.The DOLE Secretary dis-missed his complaint.

The CSC dismissed thesame upon appeal. Mace-da filed a motion for re-consideration but the CSCdenied the same.

The CA rendered a deci-sion, granting the petition

of Maceda.

ISSUE: Whether or notthe NMP illegally termi-nated Maceda from em-ployment as professor.

RULING: NMP did not

illegally terminate Macedafrom employment as pro-fessor.

The NMP ignored Mace-das solid work, expertise,and experience when itsaid that he was not qual-ified to become a perma-nent professor. But Mac-edas so-called accom-

plishments cannot countfor much where, as in thiscase, they do not in factmeet the uniform stand-ards set by the school forits permanent professors.The power to appointrests essentially on freechoice. The appointingauthority has the right todecide who best fits thejob from among thosewho meet the minimumrequirements for it. As anoutsider, quite remote

from the day-to-day prob-lems of a governmentagency such as NMP, nocourt of law can presumeto have the wisdom need-ed to make a better judg-ment respecting staff ap-

pointments.Under the relevant NMP

QS then in force, a Pro-fessor I, who was a Ma-rine Merchant Officer witha rank of a 3rd Mate Of-ficer, must possess a two-year sea experience (on

license) and three yearsof teaching experience.Maceda had sufficientteaching experience buthe did not have the re-

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DEPARTMENT OF LA-BOR

AND EMPLOYMENT(DOLE)

and NATIONAL MARI-TIME

POLYTECHNIC (NMP),vs.

RUBEN Y. MACEDAG.R. No. 185112January 18, 2010

FACTS: On June 1989Ruben Y. Maceda(Maceda), a deck marineofficer, joined the Nation-al Maritime Polytechnic(NMP), a governmentschool, with a permanentappointment as InstructorI. He rose to the perma-nent positions of AssistantProfessor I and later As-sociate Professor I. He

studied law in the mean-time and passed the barin 1996. He was laterdesignated as Officer-in-Charge (OIC) of the Mari-time Training Division andas NMPs legal counsel.

In 1998, the NMP againpromoted Maceda to therank of Professor I butthis time under a meretemporary appointment.In 1999 the InternationalMaritime Law sponsoredhis studies and he fin-ished his masters degreein 2000. He later devel-oped a module in mari-time law for Marine Offic-ers of the NMP and start-ed teaching the subject in

May 2004.Yearly, from January2000 to January 2003,the NMP renewed Mace-das temporary appoint-ment as Professor I. In2001 he resigned from hisposition as NMP legal


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quired shipboard experi-ence. In fact, he did notboard any vessel as a li-censed 3rdMate Officer.

The records show that,despite the repeated ef-forts of the NMP HumanResource ManagementSection to get him onboard, Maceda still did notbother to complete therequired shipboard expe-rience. Because of this,the NMP could only givehim temporary appoint-ment that did not provideany security of tenure.Such appointment is ofcourse terminable at thepleasure of the appointingpower with or without acause.No demotion took place

since a contractual ap-

pointment is of the same

nature as a temporary

appointment. Thus, when

the NMP did not further

renew Macedas contrac-

tual appointment, the

same cannot be regarded

as a dismissal but an ex-

piration of his term.

JESUS M. CALOvs.

COMMISSION ON ELEC-TIONS

and RAMON

MONCHING RMC M.

CALOG.R. No. 185222January 19, 2010

FACTS: Ramon M. Calo

(Ramon) was proclaimed

winner in the May 2007

mayoralty race in the

Province of Agusan del

Sur. His opponent, Jesus

M. Calo (Jesus), is hisbrother, whom he beat by

278 votes. Jesus filed an

election protest in the

Regional Trial Court (RTC)

questioning the election

results.

The RTC issued its deci-

sion on the protest finding

Jesus to have received

the majority votes and

declaring him the dulyelected mayor.

The RTC issued its special

order granting Jesus mo-

tion for the issuance of a

writ of execution pending

appeal. Ramon sought

reconsideration of this

special orderhowever,

on the same date, the

RTC ordered the transmit-

tal of the records to theCOMELEC.

Before the RTC could act

on the motion for recon-

sideration filed by Ramon,

he forthwith filed a peti-

tion for certiorari and pro-

hibition with the Commis-

sion on Elections

(COMELEC) raising as

ground the grave abuse of

discretion committed bythe RTC.

The COMELEC First Divi-

sion issued its resolution

granting the petition set-

ting aside the RTC special

order directing Ramon to

continue as the municipal

mayor of the Municipality

of Carmen. Jesus filed a

motion for reconsidera-

tion, which was denied by

the COMELEC En Banc.

ISSUE: Whether or not

the RTC exercised its dis-

cretionary power to grant

execution pending appeal

per special order with bias

or capricious and whimsi-

cal arbitrariness.

RULING: The RTC, in

exercising its discretion-

ary power to grant execu-

tion pending appeal per

special order, was not

tainted with any bias or

capricious and whimsical

arbitrariness.

Section 11, Rule 14 of

A.M. No. 07-4-15-SC

sets the standards in

the grant or denial of a

motion for execution

pending appeal in elec-

tion contests involving

elective municipal and

barangayofficials, to wit

SEC. 11. Execution

pending appeal. On

motion of the prevail-

ing party with notice

to the adverse party,

the court, while still

in possession of the

original records, may,

at its discretion, or-

der the execution of

the decision in an

election contest be-

fore the expiration of

the period to appeal,

subject to the follow-

ing rules:

(a) There must be a

motion by the prevail-

ing party with three-

day notice to the ad-

verse party. Execution

pending appeal shall

not issue without prior

notice and hearing.

There must be good

reasons for the execu-

tion pending appeal.

The court, in a special

order, must state the

good or special rea-

sons justifying the ex-

ecution pending ap-

peal. Such reasons


17/18

by the prevailing party

shall contain a three-day

notice to the adverse par-

ty and execution pendingappeal shall not issue

without prior notice and

hearing.

The COMELEC should not

have annulled the RTC

special order. The COME-

LEC committed an error in

annulling and setting it

aside.

The COMELEC should

have accorded respect

and weight to the RTCs

decision proclaiming Jesus

as winner. Note that

aside from the evidence

presented by the parties

during the election con-

test and the expert testi-

mony of the witnesses

from the National Bureau

of Investigation, the RTC

made its own assessment

and findings on the con-

tested ballots.

L C A LINESPage 17

must:

1. constitute supe-

rior circumstances

demanding urgency

that will outweigh

the injury or dam-

age should the los-

ing party secure a

reversal of the

judgment on ap-

peal; and

2. be manifest, in

the decision sought

to be executed,

that the defeat ofthe protestee or

the victory of the

protestant has

been clearly estab-

lished.

(b) If the court

grants execution

pending appeal, an

aggrieved party shall

have twenty working

days from notice of

the special order

within which to se-

cure a restraining

order or status quo

order from the Su-

preme Court or the

Commission on Elec-

tions. The corre-

sponding writ of exe-

cution shall issue af-

ter twenty days, if no

restraining order or

status quo order isissued. During such

period, the writ of

execution pending

appeal shall be

stayed.

The relevant rule provides

that a motion for execu-

tion pending appeal filed


18/18


Volume III Issue 1

January 2010

LAGUNDI-CARONAN AND ASSOC.

JLsCORNER

EAGER TO IMPRESS THE BOSS

Jeorge, a young executive was leaving the office late one evening

when he found the CEO standing in front of the shredder with a pieceof paper in his hand.

CEO: Jeorge, this is a very sensitive and important document andmy secretary has gone for the nightdo you now to make this thing

work?

Jeorge turned the machine on, inserted the paper and pressed thestart button. As they take a look at the document disappearing into

the machine, the CEO said;

Excellent! Excellent Jeorge! Thank you for your help, I just neededone copy of it

LAGUNDI-CARONAN AND ASSOCIATESRhem Square Bldg.

Carig SurTuguegarao City

LCA LINES | Volume III, Issue No. 1

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Transcript of LCA LINES | Volume III, Issue No. 1