The Lawyer on my mind

The Lawyer on my mind

By recalling all my experiences in college, I can draw a clearer picture of what kind of lawyer I want to be when that time comes. My college experience has been formed by my active involvement in social causes. I joined the volunteer program of the KKP-SIO. I was also active in the Student Government. I shared these two significant experiences because they are essential in predicting and defining what kind of lawyer I would like to be.

My exposure in social development work and governance has attracted me to engage in “developmental lawyering”. I would like to open a local public interest law firm which gives premium in serving indigent clients. Aside from practicing law, I can also see myself as an advocate for certain social causes such as the environment, agrarian reform and people empowerment.

My experience in governance as a student leader also inspires me to engage in governance development. People participation in the political process is a particular concern that I wish to engage in. I would like to sharpen my skills to provide competent advice in local government development.

In sum, I see a lawyer who labours to preserve the dignity and nobility of the legal profession; a lawyer who uses his ability to forward the causes of those who are left behind. A lawyer who is the voice of the voiceless and a lawyer who fights for the eternal truth that those who have less in life should have more in law.

This was written as a seatwork in Legal Writing A. Years from now, I shall reread this post and see. 

Random Thoughts: Problem of too much FBing

I do see that one of the greatest challenges facing the youth (middle class in particular) now is the disengagement caused by the digitalization of the world. Practically, we almost live a virtual life. Generating self-made internet content has become our primary past time. Though in itself, there is nothing wrong with it. However, if this remains unchecked, we might lose touch of reality. Subconsciously, our worth may now be gauged by the number of likes or comments generated by our statuses, or the number of friends we have in facebook. Therefore, it is important to always be in balance and keep on checking ourselves. Engage more with real people and real experiences. 

Why do I support the passage of the Reproductive Health Bill?

Why do I support the passage of the Reproductive Health Bill?

I’m neither a sociologist nor a theologian. I do not wish to pretend to be an expert in this complex issue. I only speak as a citizen and student. So What I do wish to share is the very basics why I believe, in principle, that an RH Bill should become law. I only would like to touch on the aspect of modern and natural family planning.   

It is the responsibility of the State to educate and provide its people, catholic or non-catholic, all available lawful means for family planning, natural or modern. The Philippines is not just a country of Catholics.

I also believe that it is the responsibility of the Catholic Church or any religious denomination for that matter to enlighten their respective congregation on matters of family planning in accordance to their religious beliefs or doctrines. As a catholic and student of a catholic institution, I understand that the Church’s stand is clear: artificial contraceptives are not in line with God’s design. However, I also understand that we can’t impose such belief as a state policy since the state does not represent the Catholics alone.  This is best explained by Fr. Bernas, S.J. shared in his article “My stand on the RH Bill”.

I am very much aware of the fact that we live in a pluralist society where various religious groups have differing beliefs about the morality of artificial contraception. But freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief. As the “Compendium on the Social Teaching of the Catholic Church” says, “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

Lastly, we don’t have to look at the heaves to see the harsh reality of our poor neighbours. They are trapped in this cycle of mentality which falsely assures them that more children mean more possible sources of income. Having too many mouths to feed at the very least diminishes the possibility of this family to overcome such economic constraint. The State should not sit idly by so as the Church. The State should provide all possible ways to help these families plan their family size and the Church should inform them what method they shall choose. At the end, itis a right to have an informed choice – natural or modern methods of family planning that should be upheld.  

The intent of this entry is to encourage students to also articulate their stand on this issue. This is my crude attempt to ignite such conversation since being in a Catholic school; there is a silent fear that voicing such opposing view might raise the ire of some ultra-conservative teachers. This should not be the case. The School on the other hand should encourage more debates and discussion about the matter so students can form their own opinion, not let others form it for them. 

FIRST SEM FIRST YEAR LAW SCHOOL IS OVER.

With a click of a button, I officially end my first semester as a first year Law student.

Now that I have a reasonable time to unwind and retrace my initial journey in Law School, permit me to share a thing or two about the new challenges and changes brought upon by this.

I would keep on sharing to people the opportunity cost I have to bare in this decision to study Law. I even had to call off a management job because I already enrolled.  At the beginning, it was a bit awkward seeing all your batch mates land good jobs and paying their families’ bills while I was carrying expensive Law books that my parents bought with their own money. These feelings and “what ifs” are there but it has devolved into a subsidiary feeling already. The resolve to finish and pass the bar is beginning to take its shape and has become the primary source of motivation. This is all what matters for me now. Be a lawyer first before overly thinking about the future.  

I miss college. I miss the easiness of life during undergraduate years. The world of thick books, miles of reading and legal analysis are alien to most part of my life and this needs getting used to.  Most importantly, I miss dealing with people. Not that Law school is void of it; it only has added the books as part of the “people” you have to develop a relationship with.

Now into the subject matter of Law. First year of learning the fundamental substantial laws of our jurisdiction such as Constitutional Law 1, Persons and Family Relations, and Criminal Law 1 as allowed me to see things that I have not seen nor understand before. It practically gave me a preliminary understanding of why things are what they are.

Constitutional law, in a nut shell, showed me that theoretically power resides in the people. We are only delegating our unlimited sovereign capacity to our “public servants”. Since power has its great temptations, we allocate which department gets to do what power and build a system that checks the others. Persons and Family Relations taught me that the law touches almost all aspects of human relationships even to the most private. Criminal Law taught me that it is legally alright to kill as long as three elements of self-defense are present. Sadly so, we know the theories and we also know the ocean of difference between it and reality.

To sum it all up, Law school in its preliminary taste is bitter sweet. So far, I think I can get a hang of it. at the same time, I feel anxious if I can manage the exponentially growing work load. However, with all these constraints, necessary or self-inflicted, there is a truth that I dearly hold in Law School.  That is that the Study of Law should be enjoined with a social purpose. We may be trained to master the substance of the law but we should also understand the wisdom and impact it delivers to our society, the very entity the law is established to serve. Ultimately, I do believe that the worth of the legal profession does not solely stem from winning the interest of a client but more than that, it is by being facilitators of nation-building by letting others know their worth and their rights and mobilizing such awareness to improve our policies and systems. 

FREEDOM OF INFORMATION
Joaquin G. Bernas, S.J.


With the debate going on now on the urgency or non-urgency of the Freedom of Information Bill one might get the impression that the Bill is about a novel right. As a matter of fact, however, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version.
The constitutional guarantee now reads: 


“The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” 


As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The orgitnal proposal simply said that access to official records and the right to information "shall be afforded the citizens as may be provided by law." It therefor was not a self-executory provision. It needed statutory implementaion. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations.


The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press, and, for that matter, the public, had a constitutional right to demand the examination of public land records. The Court answered: “We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution.” Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate.


The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has “standing” to challenge any violation of the right and may seek its enforcement by mandamus.


The 1987 Constitution has preserved the 1973 text but with the addition of the phrase "as well as to government research data used as basis for policy development." The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to "government research data," that is, to the findings of government funded research and not to the findings of privately funded research over which private proprietary rights might exist.


The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is "subject to such limitations as may be provided by law." Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the "inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights."


The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information Bill tries to do. While the Constitution says that the right may be limited by law, the Bill in effect seeks to limit the scope of official regulatory discretion.


The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.


It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of “executive privilege” which has also been the subject of much dispute in recent months.

17 October 2011

LISTS OF PHILIPPINE LEGAL DOCTRINE

LISTS OF PHILIPPINE LEGAL DOCTRINE

• doctrine of attractive nuisance
• doctrine of non-suability of the government - doctrine of immunity from suit - doctrine of governmental immunity from suit - doctrine of state immunity - doctrine of sovereign immunity
• doctrine of primary jurisdiction
• doctrine of renvoi
• doctrine of piercing the veil of corporate entity
• doctrine of exhaustion of administrative remedies
• doctrine of "operative facts"
• doctrine of last clear chance - doctrine of supervening negligence - doctrine of discovered peril
• doctrine of res judicata
• doctrine of processual presumption
• doctrine of statistical improbabilities
• doctrine of unforeseen events
• doctrine of conclusiveness of judgment
• doctrine of non-interference
• doctrine of pari delicto
• doctrine of qualified political agency
• doctrine of real and hypothecary nature of maritime law
• doctrine of rational equivalence
• Aguinaldo doctrine
• doctrine of corporate negligence
• doctrine of necessary implication
• doctrine of ostensible agency
• doctrine of apparent authority
• doctrine of estoppel - doctrine of promissory estoppel
• doctrine of corporate responsibility
• doctrine of privileged communication
• doctrine of lis pendens
• DOCTRINE OF SECONDARY MEANING
• doctrine of judicial stability
• doctrine of legal entity of the separate personality of the corporation
• doctrine of self-help
• doctrine of presumed identity
• doctrine of separation of powers
• doctrine of finality of judgment
• doctrine of "imputed negligence"
• doctrine of forum non conveniens
• doctrine of presumption of regularity in the performance of official duty
• doctrine of implied municipal liability
• doctrine of res ipsa loquitur
• doctrine of equitable recoupment
• doctrine of laches - doctrine of stale demands
• doctrine of absolute privilege
• doctrine of ripeness for judicial review
• doctrine of stare decisis et non quieta movere - doctrine of stare decisis
• doctrine of mortgagee in good faith
• doctrine of immutability and inalterability of a final judgment
• doctrine of "mechanical equivalents"
• doctrine of supervening event
• Cunanan doctrine
• doctrine of bar by prior judgment - doctrine of conclusiveness of judgment
• doctrine of eo nomine
• doctrine of equivalents
• DOCTRINE OF "COMMAND RESPONSIBILITY" (EO 226, s. 1995)
• doctrine of "Let the buyer beware" - doctrine of caveat emptor
• doctrine of prior restraint
• doctrine of quantum meruit
• doctrine of implications
• doctrine of "strained relations"
• doctrine of "inverse condemnation"
• doctrine of prejudicial question
• doctrine of waiver
• doctrine of in pari delicto
• doctrine of the law of the case
• doctrine of jus soli - doctrine of jus sanguinis
• doctrine of parens patriae
• doctrine of "compassionate justice"
• doctrine of 'political question'
• doctrine of corporate negligence
• act of state doctrine
• doctrine of executive privilege
• doctrine of merger
• doctrine of non-delegation
• doctrine of co-equal or coordinate departments
• doctrine of holdover
• doctrine of absorption of common crimes (Hernandez doctrine)
• doctrine of res gestae
• doctrine of adherence to precedents
• doctrine of ultra vires
• doctrine of privity of contract
• doctrine of relation back
• doctrine of condonation
• doctrine of limited liability
• doctrine of interlocking confessions
• doctrine of vicarious liability
• doctrine of respondeat superior - doctrine of facit per alium
• doctrine of public policy
• doctrine of the third group
• doctrine of malicious prosecution
• doctrine of res perit domino
• doctrine of fraus et jus nunquam cohabitant
• doctrine of separability
• doctrine of part performance
• doctrine of deference and non-disturbance
• doctrine of quantum meruit
• doctrine of waiver of double jeopardy
• doctrine of supremacy of law
• doctrine of substantial compliance
• doctrine of liberal construction of retirement laws
• doctrine of lis pendens
• doctrine of mortgagee in good faith
• doctrine of presumptive grant
• doctrine of protection against compulsory disclosures
• doctrine of notice
• doctrine of mutuality of remedy
• doctrine of conclusiveness of the factual findings
• doctrine of qualified political agency
• doctrine of sole and exclusive competence of the labor tribunal
• doctrine of loss of confidence
• doctrine of disregarding the distinct personality of the corporation - doctrine of alter ego
• doctrine of agency by estoppel
• doctrine of admissions
• doctrine of reasonableness and intention
• doctrine of proximate cause
• doctrine of separate corporate personality
• DOCTRINE OF LIBERAL CONSTRUCTION OF THE ADMINISTRATIVE RULES OF PROCEDURE
• doctrine of hierarchy of courts
• doctrine of management prerogative
• doctrine of successor-employee
• doctrine of actio personalis moritur cum persona
• doctrine of vagueness
• doctrine of overbreadth
• doctrine of lack of capacity to sue
• doctrine of presumptive compensability
• doctrine of separation of church and state
• doctrine of part performance
• doctrine of judicial supremacy
• doctrine of completeness
• doctrine of pro reo
• doctrine of ratification
• doctrine of fair comment
• doctrine of election of remedies
• doctrine of indefeasibility of a Torrens Title
• doctrine of constructive trust
• doctrine of subrogation
• doctrine of implied trust
• doctrine of incompatibility of public offices
• doctrine of assumed risks
• doctrine of comparative negligence

The foundation of studying smart

After a long time, I am finally back blogging. The demands of Law school have prevented me from doing so. Nonetheless, law school first year first semester is about to end and I can’t even begin to enumerate the interesting changes and new insights that spurred from this initial life changing experience we call Law school. To begin with, studying everyday is not longer following a good advice; it is already a performance of an obligation which if not met will result to sudden death. Law school brings a whole new meaning to the word “studying”. Studying has become a sort of organism. It has its own complexities and dynamics, behaviour and anatomy, that each of us has to grapple with and understand until the moment we take the bar and beyond. In my case, I just walked a foot in a mile long journey. As any organism, we can understand it by observing it. I do think that by studying how we study the law – which is observing the agent of studying, it will surely help out in the long run. It is vital to know what will make us remember and understand because each one has his own unique way.

All these are ideals that I established for myself to at least “operationalize” in my daily dealings as a student of the law. Studying is just one aspect of so many aspects in law school. Ultimately, the foundation of studying smart is really understanding your own mind in how it processes input – know thyself.

This is just my brain talking. I have yet to put this into practice. 

TASK FORCE "TOO-BIG"

Cagayan de Oro City

MANIFESTO

WE, THE CONSUMERS OF WATER PROVIDED BY THE CAGAYAN DE ORO WATER DISTRICT (COWD) , HEREBY PROTEST THE IMPROPRIETY OF THE COWD PROPOSED 30% INCREASE FOR PAYMENT OF WATER CONSUMPTION. TO GATHER OUR COLLECTIVE CONCERNS AND OBJECTION TO THE WATER RATE HIKE, WE HAVE ORGANIZED OURSELVES INTO A TASK FORCE DUBBED “TASK FORCE TOO- BIG ". IT IS A MULTI-SECTORIAL GROUP COMPOSED OF THE BISHOP- BUSINESSMEN'S CONFERENCE- CAGAYAN DE ORO CHAPTER, CATHOLIC SOCIAL ACTIONS IN ARCHDIOCESE PARISHES,CAGAYAN DE ORO COOPERATIVE DEVELOPMENT COUNCIL, KONSUMENTING KAGAY-ANON, CIVIL SOCIETY ORGANIZATIONS AND GROUPS OF THIS CITY.

OUR MAIN OBJECTION TO THE PROPOSAL HINGES ON: WHY PASS ON THE CONSUMERS THE ADDITIONAL EXPENSE OF COWD'S OPERATIONS WHEN ITS EXISTING REVENUE CAN TAKE CARE OF THE COSTS IF PROPERLY MANAGED?
THE COMMISSION ON AUDIT (COA) AUDIT REPORTS ON COWD'S FINANCIAL OPERATIONS (2005-2009) SHOWED EXPENSES "WITHOUT LEGAL BASES" AMOUNTING TO PHP 411.52 MILLION FOR THE 5-YEAR PERIOD. ALSO, UNBILLED WATER (OR SYSTEMS LOSS THROUGH LEAKAGES,ETC) HAS BEEN CONSISTENTLY RISING AND HAS REACHED 53.1% IN 2009, WHICH TRANSLATES INTO MILLIONS OF PESOS OF LOSS. THIS IS OUR CONTENTION: UNLESS THESE FINANCIAL AND OPERATIONAL CONSTRAINTS ARE ACCOUNTED FOR, CORRECTED NOT REPEATED, THEN THE PROPOSED 30% INCREASE BECOMES UNJUSTIFIABLE, UNREASONABLE, UNACCEPTABLE AND UNTENABLE.

WE, THE CONSUMERS WHO DESIRE, HOPE FOR AND SUPPORT AN EFFICIENT PUBLIC SERVICE IN WATER SUPPLY, SEEK OTHER SOLUTIONS TO EXISTING PROBLEMS OF COWD THAT WILL ADDRESS ISSUES ON GOOD GOVERNANCE, MANAGEMENT AND STRUCTURE TO HELP COWD ASSUME ITS MISSION OF SERVING THE PUBLIC.

Grave Abuse of Discretion

Introduction

Unique from the United States constitution which our present constitution is patterned from, the Philippine Supreme Court is not only vested with judiciary power but also includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[1]  

To wit, Article 8, Section 1 which expresses the power of the Supreme Court states:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. The judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse or discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

The addition was introduced because of the frequency with which the Supreme Court had appealed to the “political question” doctrine during the period of martial law, it is not meant to do away with the political questions doctrine itself.[2]

What is the definition of Grave abuse of Discretion?

The exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility.[3] Such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[4]

There is grave abuse of discretion (1) when act is done contrary to the constitution, the law or jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections awarded the subject contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.[5]

Coverage

In recent jurisprudence, any branch or instrumentality of the government covers even independent bodies such as Electoral Tribunal, political parties and the House of Representatives and administrative agencies. Even the act of the President is covered as enunciated in the case of Lacson v. Perez[6], where the President called the armed forces to mend the increasing criminality in the country.

Conclusion

The power to determine grave abuse of discretion has given the Supreme Court the right to check co-equal branches of government for abuse.  For us law students, it is important to understand the unique power granted by the constitution to our Supreme Court since this allows the Supreme Court to be not just the court of last resort, but also the protector of our rights and the defender of  our constitution.

---

[1] Article 8, Section 1 of the Constitution of the Philippines

[2]  BERNAS, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.952, 2009 Ed.

[3] Jalandoni vs. Secretary of Justice, G.R. No. 115239-40, 2 March 2000

[4]  Sinon vs. Civil Service Commission, G.R. No. 101251, 5 November 1992

[5] Infotech Foundation, et al. V. COMELEC, G.R. No. 159139, January 13, 2004       

[6] Lacson v. Prez, G.R. No. 134577, November 18, 1998

Wikileaks Timeline

on Dipity.

Conjugal Property Distinguished from System of Absolute Community:

In terms of marriage settlements, the Family Code provides the following:

The future spouses may in the marriage settlements; agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlements, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.[1]

In order to have a better appreciation and understanding between conjugal partnership of gains and the system of absolute community, it is best to know their difference. These two property regimes are just a part of other property regimes spouses may enter into.

Conjugal Property Distinguished from System of Absolute Community:

What is a system of absolute community?

This is one of the regimes or systems of property relations between the spouses and the default system in the absence of a prenuptial agreement or when the agreed system is null and void. This system commences at the precise moment that the marriage is celebrated, and any stipulation for the commencement of the community regime at any other time is void. In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into the marriage (those that they owned before the marriage), as well as the properties acquired during the marriage, except for certain properties express excluded by law (listed below). The rules on co-ownership apply in all matters not provided under the Family Code.[2]

What is the Conjugal Property of Gains?

Oftentimes referred to as the CPG, it is one of the property relations between the spouses, under which the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. In other words, the following are placed in a common fund:

1. The proceeds, products, fruits and income from their separate properties; and
2. Those acquired by either or both spouses through their efforts or by chance.[3]

What are their differences?

A. In the system of absolute community, all the properties owned by the spouses at the time of the marriage become community property. In the conjugal partnership, each spouse retains his or her property before the marriage, and only the fruits and income of such properties become part of the conjugal properties during the marriage.

B. In the system of absolute community, what is divided equally between the spouses or their heirs upon the dissolution and liquidation of the community property is the net remainder of the properties of the absolute community, so that it may happen that a piece of land owned by either spouse before the marriage, being the only property left after the dissolution of the absolute community, would be divided between the spouses or their heirs. In the conjugal partnership of gains, however, the separate properties of the spouses are returned upon the dissolution of the partnership, and only the net profits of partnership are divided equally between the spouses or their heirs.

C. The system of absolute community is based essentially on mutual trust and confidence between the spouses and fosters oneness and unity between them. This is in fact the tradition and custom among the great majority of Filipinos and this is the reason why the Family Code adopts this system instead of the conjugal partnership of gains, which is taken from Spanish law. In conjugal partnership of gains, the capital or properties of the spouses are kept separate and distinct from the benefits acquired by them during the marriage. This constitutes an insurmountable obstacle to the presumption of solidarity between the spouses.[4]

D. It is easier to liquidate the absolute community property because the net remainder of the community properties are just divided between the spouses or their heirs. In the conjugal partnership, the exclusive properties of the parties will have to be identified and returned, and sometimes, this identification is very difficult. [5]

---

[1] Article 75, Family Code of the Philippines

[2] http://jlp-law.com/blog/system-of-absolute-community-property-relations-in-marriage/

[3] http://jlp-law.com/blog/conjugal-partnership-gains-property-relations-marriage/

[4] National Bank v. Quintos, 46 Phil. 370

[5] Justice Alicia Sempio-Diy, Handbook on the Family Code of the Philippines, p62, 1995 Edition

Legal Latin Words

LATIN	MEANING
Lex Prospicit, Non Respicit	The law looks forward, not backward
Lex de Futuro, Judex de Praterio	The law provides for the future, the judge for the past
Absolute Sentencia Expositore Non Indiget	When the language of the law is clear, no explanation of its required
Optima Statuti interpretatix Est Insum Statutum	The best interpreter of the statute is the statute itself
Ratio Legis	Interpretation according to spirit
Ratio Legis Est Anima	The reason of the law is its soul
Cessante Ratione Cesat Ipsa Lex	When the reason for the law ceases, the law ceases also to exist
Expresio Unius Est Exclusio Alterius	Express mention is implied exclusion
Generalia specialibus non derogant	A general law does not nullify a specific or special law
Dura Lex Sed Lex	The law may be harsh but it is still the law
Cogitationis Poenam Nemo Emeret	No man may be punished for his thought
Actus Non Facit Reum Nisi Mens Sit Rea	The act itself does not make a man guilty unless his intention were so
Actus Me Invito Factus Non Est Meus Actus	An act done by me against my will is not my act
Ignorantia Legis Neminem Excusant	Ignorance of the law excuse no one
Ignorantia Facto Excusat	Ignorance or mistake in point of fact is an excuse
Ubi Lex Non Distinguit Nea Nos Distiguere Debemos	Where the law does not distinguish, we should not distinguish
Mens Legislatores	Liberal construction
Reddendo Singula Singulis	Referring each to each
Cassus Omissus Pro Omisso Habbendus Est	A case omitted is to be held as intentionally omitted
Noscitur a sociis	Finding the context
Ejusdem generis	When general words follow the designation of particular things, or classes of persons or subjects, the general words will usually be construed to include only those persons or things of the same class or general nature as those specifically enumerated.

Psychological incapacity

Article 36 of the Family Code of the Philippines provides:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligation of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Psychological incapacity is a ground for the declaration of absolute nullity of the marriage. Psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. [1] In simpler terms, psychological incapacity is the condition of a person who does not have the mind, will, and the heart for the performance of marriage obligations.[2]

[1] Santos v CA, GR No. 112019, January 4, 1995

[2] PARAS, Civil Code of the Philippines Annotated Book 1 Persons and Family Relations, p422, 14th Edition

THE INVESTIGATIVE POWER OF CONGRESS

A politically-interested friend of mine randomly asked me why does congress, our legislative body, conducts investigations. Since an investigation, according to him is judicial in nature. I guess this is a significant question since ordinary citizens can always see these hearings in TV and its proceedings are the meat of late night news. His question is a good topic to elaborate and in the broader light, every citizen must at least have a basic understanding of the powers of congress for them to better engage the law-makers and the law-making process. The spirit of the question asks about the investigative powers of congress.

The legislative investigation is enshrined in Article 6, Section 21 of the Constitution:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

Why is there a need for Legislative Investigations?

Arnault v. Nazareno[1] states the foundation of the power of legislative investigation. The court said through Justice Ozaeta that the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change and where the legislative body does not itself possess the requisite information - which is not in frequently true – recourse must be had to others who do possess it. In simpler and general terms; for congress to make good laws, it needs good information from the once that implements it. Thus legislative investigation is that tool to extract information.

What do you mean by “Aid of Legislation”?

In aid of legislation serves as a limitation to the broad investigative powers of congress, so as the publishing of the rules of procedure and the protection of the rights of persons. “In aid of legislation” is an essential element in the jurisdiction of the legislative body. Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation.[2] “In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited form a single question.[3]

Does the absence of published rules, as cited in the constitutional provision, bar congress from investigation?

The second limitation speaks of the need to publish the rules of procedure regarding legislative inquiry. The need for publication became a focus in the case of Neri v. Senate case. This case states that the Senate currently conducting the investigation had not published its rules. The Court emphasised that publication gives the notice that is required for due process since investigation can affect the rights of non-members of congress. In effect, in the absence of published rules, investigation cannot proceed.[4]

What is the basis of congress to contempt people under investigation?

The third limitation of the power of legislative inquiry concerns the protection of the rights of persons articulated in the Bill of Rights of the Constitution. However, corollary to the protection of individual rights in the exercise of their investigative power, it should also be understood that Congress can hold people in contempt in its judgement. Jurisprudence provides that the congress in its right of self-preservation can impose penalty in its existence or while in session.

Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteers is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.[5] The fact that the Constitution expressly gives to Congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person.[6] This must be so, inasmuch as the basis of the power to impose such a penalty is the right which the Legislature has to self-preservation, and which right is enforceable during the existence of the legislative body. [7]

The power to contempt is articulated further by Arnault vs. Nazareno. The petitioner argued that the Senate lacks authority to commit him for contempt for a term beyond its period of legislative session. According to the Supreme Court:

That investigation has not been completed because of the refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the particular legislative function involved. To hold that it may punish the witness for contempt only during the session in which investigation was begun, would be to recognize the right of the Senate to perform its function but at the same time to deny to it an essential and appropriate means for its performance. Aside from this, if we should hold that the power to punish for contempt terminates upon the adjournment of the session, the Senate would have to resume the investigation at the next and succeeding sessions and repeat the contempt proceedings against the witness until the investigation is completed-an absurd, unnecessary, and vexatious procedure, which should be avoided. As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and oppressively exerted by the Senate which might keep the witness in prison for life. But we must assume that the Senate will not be disposed to exert the power beyond its proper bounds. And if, contrary to this assumption, proper limitations are disregarded, the portals of this Court are always open to those whose rights might thus be transgressed.

Who is exempt from Legislative Inquiry?

The President, on whom executive power is vested, is beyond the reach of Congress, except through the power of impeachment. It is based on the President's position as the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. Members of the Supreme Court are exempt from this power of inquiry on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary.[8]

Conclusion

The power of inquiry flows from the fundamental principle of the separation of powers which our Constitution enshrines. It enables the legislative branch of government to do its job with precision under the delicate relationship with the other co-equal branches of government and the limitations of the power set forth in Article 6, Section 21 of the Constitution. For ordinary citizens, it is important to understand that the law-making process entails vast powers which if unchecked, can invade and insult our individual rights and freedoms. Legislative inquiry as an implied power of the legislature should be at its best, supported for it aids in creating good laws, and at its worst, guarded for it can be a tool to play circus among the self-interests and passions of law-makers.

[1] 87 Phil. 29, 45 (1950)

[2] BERNAS, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.760, 2009 Ed.

[3] 87 Phil. At 45.

[4] BERNAS, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.762, 2009 Ed.

[5] McGrain v. Daugherty, 273 U.S., 135; 71 L.ed.,580; 50 A.L.R.,1.

[6] Anderson v. Dunn, 6 Wheaton, 204; 5 L. Ed., 242.

[7] Avancwna, C.J., concurring in Lopez v. De los Reyes, 55 Phil. 170, 186 (1930)

[8] Sabio vs. Gordon, G.R. No. 174318, October 17, 2006