Name, Anthem, Seal and Flag

May the name, national anthem and seal of the Philippines be changed?

Yes! Name, anthem and seal may be changed by an act of Congress, but any change must be ratified by the people in a referendum.

“The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.”

If change is to be made on the design of the Philippine flag, how is it to be achieved?

The provision on the flag, however, does not specify how the design may be changed. The result is that the provision is fellester.blogspot.com placed on the same level as all the other provisions of the Constitution not qualified by the phrase “as may be provided by law.” Thus it can be changed only by a constitutional amendment. This means that any proposed change can come only from Congress as a constituent assembly, from a constitutional convention, or from the people through initiative. And it must be submitted to the people for approval in a plebiscite.(Fiddling with the colors and rays of the flag by By Fr. Joaquin G. Bernas, S.J., Philippine Daily Inquirer,10/05/2009)

Probable cause in issuing Warrants of Arrest

In a rape case, private complainant failed to appear 4 consecutive orders to take the witness stand in order to satisfy the judge for the existence of probable cause for the issuance of a warrant of arrest.

Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that the complainant and her witnesses failed to take the witness stand. He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause “to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Is Judge Carbonell correct?


SUGGESTED ANSWER:


No. Judge Carbonell committed grave abuse of discretion. The Supreme Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses.

“We reiterated the above ruling in the case of Webb v. De Leon, where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.”

fellester.blogspot.com It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor.

True, there are cases where the circumstances may call for the judge’s personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. (AAA vs. Carbonell, G.R. No. 171465, June 8, 2007)

Conspiracy and the Anti-VAWC law

Sharica filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO) against her husband Steven and her parents-in-law, spouses Pecto Yan and Ramona Yan before the RTC. She alleged that Steven, in conspiracy with her parents-in-law, were causing verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i) of Republic Act (R.A.) No. 9262, otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004.”

However, the RTC dismissed the case on the ground that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A. No. 9262 under the well-known rule of law “expressio unius est exclusio alterius.”
Are parents-in-law covered by R.A. No. 9262?


SUGGESTED ANSWER:

Yes. The SC ruled that “while RA 9262 provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC.

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter.

“The principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily.”

"Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, fellester.blogspot.com the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals."

It bears mention that the intent of the statute is the law and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius” finds no application here. It must be remembered that this maxim is only an “ancillary rule of statutory construction.” It is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature. (Tan vs. Tan, G.R. No. 168852, September 30, 2008)

Pandacan Oil Depot Case

Ordinance No. 8027, approved by Manila City Council on November 28, 2001 and effective December 28, 2001, reclassifies portions of Pandacan and Sta. Ana from industrial to commercial and directs the owners and operators of businesses to cease and desist from operating their businesses within 6 months from the ordinance’s effectivity. Among the businesses in the area are the so-called Pandacan Terminals of Chevron, Petron, and Shell.

Chevron, Petron and Shell, questioned the validity of the said ordinance. They argued that they are fighting for their right to property alleging that they stand to lose billions of pesos if forced [to] relocate. Are the contentions of the oil companies tenable?

SUGGESTED ANSWER:

No. The Court described Ordinance No. 8027 as a measure enacted pursuant to the delegated police power of local government units “to promote the order, safety, and health, morals, and general welfare of the society.” It explained that “based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable, property is not.

When the state or [local government unit] LGU’s exercise of police power clashes with a few individuals’ right to property, the former should prevail.” (GR No. 156052, Social Justice Society, et al. v. Atienza, Jr., February 13, 2008)

Ordinance No. 8027 visit fellester.blogspot.com was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City.

The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

NOTES:

In 2007, the SC ruled that the Local Government Code imposes upon Mayor Atienza, to “enforce all laws and ordinances relative to the governance of the city.” One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts. He has no other choice. (GR No. 156052, Social Justice Society, et al. v. Atienza, Jr., March 7, 2007)

In 2008, The Supreme Court denied the motions for reconsideration filed by Chevron, Petron, and Shell, and instead reiterated its March 7, 2007 decision. (GR No. 156052, Social Justice Society, et al. v. Atienza, Jr., February 13, 2008)

In 2009, the SC recently denied with finality the second motion for reconsideration of the three big oil players. The Court stressed that the second motion for reconsideration is a prohibited pleading pursuant to sec. 2, Rule 52 of the Rules of Court. It said that it already passed upon the basic issues in its February 13, 2008 resolution and noted that the arguments of the oil firms were a mere rehash of their arguments raised in the first motion for reconsideration. (Min. Res., GR No. 156052, Social Justice Society, et al. v. Atienza, Jr., April 28, 2009)

Brother Eli vs. Laguardia

Ang Dating Daan host Eliseo S. Soriano uttered the following statements in his TV program against Michael Sandoval (Iglesia ni Cristo’s minister and regular host of the TV program Ang Tamang Daan):

Lehitimong anak ng demonyo[!] Sinungaling [!]
Gago ka talaga[,] Michael[!] [M]asahol ka pa sa putang babae[,] o di ba[?] [‘]Yung putang babae[,] ang gumagana lang doon[,] [‘]yung ibaba, dito kay Michael[,] ang gumagana ang itaas, o di ba? O, masahol pa sa putang babae [‘]yan. Sobra ang kasinungalingan ng mga demonyong ito.

As a result, The MTRCB initially slapped Soriano’s Ang Dating Daan, which was earlier given a “G” rating for general viewership, with a 20-day preventive suspension after a preliminary conference. Later, in a decision, it found him liable for his utterances, and was imposed a three-month suspension from his TV program Ang Dating Daan. Soriano challenged the order of the MTRCB.


HELD:

The SC ruled that “Soriano’s statement can be treated as obscene, at least with respect to the average child,” and thus his utterances cannot be considered as protected speech. Citing decisions from the US Supreme Court, the High Court said that the analysis should be “context based” and found the utterances to be obscene after considering the use of television broadcasting as a medium, the time of the show, and the “G” rating of the show, which are all factors that made the utterances susceptible to children viewers. The Court emphasized on how the uttered words could be easily understood by a child literally rather than in the context that they were used.”

The SC also said “that the suspension is not a prior restraint, but rather a “form of permissible administrative sanction or subsequent punishment.” In affirming the power of the MTRCB to issue an order of suspension, the majority said that “it is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause.” visit fellester.blogspot.com The Court said that the suspension “is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB,” rather, it was a sanction for “the indecent contents of his utterances in a “G” rated TV program.” (Soriano v. Laguardia; GR No. 165636, April 29, 2009)

Dissenting Opinion:

Chief Justice Reynato S. Puno, in a separate dissenting opinion, said that a single government action could be both a penalty and a prior restraint. The Chief Magistrate pointed out that the three month suspension takes such form because it also acts as a restraint to petitioner’s future speech and thus deserves a higher scrutiny than the “context based” approach that the majority applied. In voting to grant Soriano’s petition, the Chief Justice said that “in the absence of proof and reason, he [Soriano] should not be penalized with a three-month suspension that works as a prior restraint on his speech.”

Euro Generals vs. the Senate

Gen. Dela Paz was apprehended at the Moscow airport departure area for his failure to declare in written form the 150, 000 euros found in his possession. As a result, the Senate Committee on Foreign Relations conducted an inquiry and issued warrants of arrest in connection with the “Euro-General’s” detention in Moscow. However, Dela Paz contended that the said Senate Committee chaired by Sen. Miriam Defensor-Santiago, was devoid of any jurisdiction to investigate the Moscow incident as it does not involve state to state relations as provided in par. 12, sec. 13, Rule 10 of the Senate Rules of Procedure. He added that the arrest warrants issued by the Senate against him were invalid as these lacked the required signatures of the majority of the members of respondent committee. Are the contentions of the Dela Paz tenable?

SUGGESTED ANSWER:


No. In a nine-page unanimous resolution penned by Justice Antonio Eduardo B. Nachura, the Court enumerated six reasons why the petition of the spouses Dela Paz “must inevitably fail.”

The Court cited sec. 16(3), Art. VI of the Constitution, which states that each House shall determine the rules of its proceedings. “The challenge to the jurisdiction of the Senate Foreign Relations Committee…in effect, asks this Court to inquire into a matter that is within the full discretion of the Senate….[I]t is not for this Court to intervene in what is clearly a question of policy, an issue depended upon the wisdom, not the legality, of the Senate’s action,” the Court said.

Second, the Court said that even if it is within the Court’s power to inquire into the validity of the exercise of assailed jurisdiction, it is convinced that respondent Committee has acted within the proper sphere of its authority. Citing the same provision raised by dela Paz, the Court said that the Senate provision “unmistakably shows that the investigation of the Moscow incident is well within its committee’s jurisdiction.” visit fellester.blogspot.com The Court cautioned that the Moscow incident could create ripples in the relations between the Philippines and Russia, noting that country is a state-party to the United Nations Convention Against Corruption and the United Nations Convetion Against Transnational Organized Crime. The two conventions contain provisions dealing with the movement of considerable foreign currency across borders. The Moscow incident would reflect on our country’s compliance with the obligations required of state-parties under these conventions, noted the Court.

Third, the Senate has decided that the legislative inquiry will be jointly conducted by the respondent Committee and the Senate Committee on Accountability of Public Officers and Investigations (Blue Ribbon Committee). Pursuant to par. 36, sec. 13, Rule 10 of the Senate Rules, the Blue Ribbon Committee may conduct investigations on all matters relating to malfeasance, misfeasance, and nonfeasance in office by officers and employees of the government.

Fourth, the Philippine Senate has issued a formal written order of arrest signed by 10 senators, with the Senate President himself approving it, in accordance with the Senate Rules.

Fifth, the Philippine Senate has already published its Rules of Procedure Governing Inquiries in Aid of Legislation in two newspapers of general Circulation.

Lastly, the arrest order issued against the Dela Paz coupled has been rendered ineffectual when Gen. Dela Paz voluntarily submitted himself during the Senate inquiry held on November 15, 2008. The Senate Committee on Foreign Relations initially scheduled the hearing on the Moscow incident on October 23, 2008. (GR No. 184849, Spouses Dela Paz v. Senate Committee on Foreign Relations, February 13, 2009)

Lance Corporal Daniel Smith Case

Lance Corporal Daniel Smith, member of the US Armed Forces, was found guilty beyond reasonable doubt of the crime of rape in the RTC of Makati. The court ordered Smith detained at the Makati City Jail until further orders.

On December 19 and 22, 2006, Philippine Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney executed agreements that pursuant to the VFA, Smith be returned to the US military custody and be detained at the first floor, Rowe Building, US Embassy Compound.

Petitioner Jovito Salonga, et al. challenged the validity of the said agreements contending that the Philippines should have custody of Smith because, first of all, the VFA is void and unconstitutional since it violates Art. XVlll, Sec. 25 of the constitution.

Is the VFA constitutional? Granting that it is constitutional, Are the Romulo-Kenney Agreements in accordance with the provisions of the VFA itself?


SUGGESTED ANSWER:

The SC ruled The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA.

VFA is Constitutional

The SC ruled that “the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States,” and “the fact that (it) was not submitted for advice and consent of the United States does not detract from its status as a binding international agreement or treaty recognized by the said State.”

Section 25, Article XVIII, 1987 Constitution provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

The issue, the Court said, is “whether or not the presence of the US Armed Forces in Philippine territory pursuant to the VFA is allowed ‘under a treaty duly concurred in by the Senate and recognized as a treaty by the other contracting State.’” “It is,” the Court ruled. “The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Mutual Defense Treaty,” the Court held. visit fellester.blogspot.com The RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.


Romulo-Kenney Agreements not in accord with the VFA itself

The Court however ruled that “the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities.” Article V, Section 10 of the VFA provides that “the confinement or detention by Philippine authorities of the United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)


DISSENTING OPINION

In his dissent, Chief Justice Puno maintained his view in the earlier case of Bayan v. Zamora that the VFA falls short of the requirement set by Sec. 25, Art. XVIII, 1987 Constitution, which provides that the agreement allowing the presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.” For the Chief Justice, the majority of the Court in Bayan v. Zamora gave undue deference to the statement of former US Ambassador Thomas Hubbard that US Senate advice and consent was not needed to consider a treaty binding on the US, “then jumped to the conclusion that the US recognized the VFA as a treaty, and that the constitutional requirements had been satisfied.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

aerial spraying case

CURRENT EVENTS: Davao planters vs. City of Davao

The City of Davao passed an ordinance prohibiting aerial spraying in all plantations within the province and criminally penalizing violation of the ordinance. The banana planters challenged the constitutionality of the ordinance. Is the Ordinance constitutional?

SUGGESTED ANSWER 1:

No. The Court of Appeals based in Cagayan de Oro City, by a vote of 4 to 1, upheld the contention of the planters that the ordinance was unconstitutional because it was oppressive and confiscatory. The argument of oppressiveness was based on a number of factual arguments: (1) the impossibility of switching to other forms of spraying within three months and the enormous cost it would take to accomplish the switch; (2) the harm to the health of workers who would do the manual spraying; (3) and the lack of scientific proof that aerial spraying was harmful to health. The CA also ruled that it violated the equal protection of law since the ordinance prohibits the use of all sprays without distinction.


SUGGESTED ANSWER 2:

Yes. The ordinance is constitutional. According to Fr. Joaquin G. Bernas, “the case in essence is a conflict between the right to property and the right to life. The accepted jurisprudence is that in the hierarchy of rights life normally prevails over property.” (Banana planters vs City of Davao, by Fr. Joaquin G. Bernas, Philippine Daily Inquirer 01/26/2009)

“A provision in the 1987 Constitution, which once some saw as unnecessary, has been gradually gaining attention. Section 16 of Article II says: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” visit fellester.blogspot.com In tandem with it is Section 15, which says: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”

Section 16 is unusual among those found in Article II in that, whereas almost all the other provisions in the Article are not self-executing but need implementing legislation to make them effective, Section 16 has been recognized by the Supreme Court as self-executing like the provisions in the Bill of Rights. (‘A balanced and healthful ecology,’ by Fr. Joaquin G. Bernas, Philippine Daily Inquirer, 02/02/2009)

'short-time' ban 'unconstitutional'

Mayor Lim signed into law City Ordinance No. 7774 prohibiting short-time admission, short-time admission rates, and wash-up rate schemes in hotels, motels, inns, lodging houses, pension houses, and similar establishments in the city of manila. White Light Corporation and other operators of drive-in-hotels and motels in Manila complained that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; an invalid exercise of police power; and an unreasonable and oppressive interference in their business. On the other hand, the City of Manila argued that the Ordinance is a valid police power measure. It asserts that the subject establishments “have gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila. Thus, it became the ‘ideal haven for prostitutes and thrill-seekers.” Is Ordinance No. 7774 constitutional?

SUGGESTED ANSWER:

No, Ordinance No. 7774 is unconstitutional. The SC ruled that the ordinance is an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. “The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions.”

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work.

More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants.

Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. (visit fellester.blogspot.com) Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. (White Light Corp. vs. City of ManilaG.R. No. 122846, January 20, 2009)


Notes:

In Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila (1967) upheld the validity a City Ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house.

In City of Manila v. Laguio, Jr., the Court affirmed the nullification of a city ordinance that sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area.

xxx The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements:

(1) must not contravene the Constitution or any statute
(2) must not be unfair or oppressive
(3) must not be partial or discriminatory
(4) must not prohibit but may regulate trade
(5) must be general and consistent with public policy
(6) must not be unreasonable.

Who can file a petition for declaration of nullity of marriage?

A petition for declaration of absolute nullity of void marriage may be filed SOLELY by the husband or wife. Exceptions: (1) Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC (March 15, 2003); and (2) Marriages celebrated during the effectivity of the Civil Code.

Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage.

The new Rule recognizes that the husband and the wife are the sole architects of a healthy, loving, peaceful marriage. They are the only ones who can decide when and how to build the foundations of marriage. The spouses alone are the engineers of their marital life. They are simultaneously the directors and actors of their matrimonial true-to-life play. Hence, they alone can and should decide when to take a cut, but only in accordance with the grounds allowed by law.

The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line between marriages covered by the Family Code and those solemnized under the Civil Code. The Rule extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. [18]

The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the beginning of the end of the right of the heirs of the deceased spouse to bring a nullity of marriage case against the surviving spouse. But the Rule never intended to deprive the compulsory or intestate heirs of their successional rights.

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.

It is emphasized, however, that the Rule does not apply to cases already commenced before March 15, 2003 although the marriage involved is within the coverage of the Family Code. This is so, as the new Rule which became effective on March 15, 2003 is prospective in its application.

CARLOS v. SANDOVAL


Teofilo and Felicidad got married in 1962. Thirty years after marriage, Teofilo died intestate leaving his wife and son Teofilo Carlos ll. In 1995, Teofilo’s brother Juan filed a petition for declaration of absolute nullity of Teofilo and Felicidad's marriage in view of the absence of the required marriage license. He likewise maintained that his deceased brother was neither the natural nor the adoptive father of respondent Teofilo Carlos II. Can Juan file a petition for declaration of absolute nullity of marriage?

SUGGESTED ANSWER

In Carlos vs. Sandoval, although the marriage was celebrated before Aug. 3, 1988and the petition was filed before March, 15, 2003, Juan should first show that he is a real party-in interest before he may be allowed to file the said petition.

"The absence of a provision in the Civil Code cannot be construed as a license for any person to institute a nullity of marriage case. Such person must appear to be the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Elsewise stated, Juan must be the real party-in-interest. For it is basic in procedural law that every action must be prosecuted and defended in the name of the real party-in-interest."

Interest within the meaning of the rule means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved or a mere incidental interest. One having no material interest to protect cannot invoke the jurisdiction of the court as plaintiff in an action.


Is Juan a Real Party-in-Interest?

The SC ruled that "the case must be remanded to determine whether or not Juan is a real-party-in-interest to seek the declaration of nullity of the marriage in controversy.


It bears stressing that the legal personality of petitioner Juan to bring the nullity of marriage case is contingent upon the final declaration that Teofilo II is not a legitimate, adopted, or illegitimate son of Teofilo.

In the case at bench, the records reveal that when Teofilo died intestate in 1992, his only surviving compulsory heirs are respondent Felicidad and their son, Teofilo II. Under the law on succession, successional rights are transmitted from the moment of death of the decedent and the compulsory heirs are called to succeed by operation of law.

Clearly, a brother is not among those considered as compulsory heirs in Article 887, CC. But although a collateral relative, such as a brother, does not fall within the ambit of a compulsory heir, he still has a right to succeed to the estate. Articles 1001 and 1003 of the New Civil Code provide:

xxx

xxx Thus, if Teofilo II is finally found and proven to be not a legitimate, illegitimate, or adopted son of Teofilo, petitioner Juan succeeds to the other half of the estate of his brother, the first half being allotted to the widow pursuant to Article 1001 of the New Civil Code. This makes Juan a real-party-interest to seek the declaration of absolute nullity of marriage of his deceased brother with respondent Felicidad. If the subject marriage is found to be void ab initio, petitioner succeeds to the entire estate.

However, If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of Teofilo, then Juan has no legal personality to ask for the nullity of marriage of his deceased brother and respondent Felicidad. This is based on the ground that he has no successional right to be protected, hence, does not have proper interest. For although the marriage in controversy may be found to be void from the beginning, still, petitioner would not inherit. This is because the presence of descendant, illegitimate, [34] or even an adopted child [35] excludes the collateral relatives from inheriting from the decedent.

Thus, the Court finds that a remand of the case for trial on the merits to determine the validity or nullity of the subject marriage is called for. But the RTC is strictly instructed to dismiss the nullity of marriage case for lack of cause of action if it is proven by evidence that Teofilo II is a legitimate, illegitimate, or legally adopted son of Teofilo Carlos, the deceased brother of petitioner.(Carlos vs. Sandoval, G.R. No. 179922, December 16, 2008)

Senate: not a continuing body

In the leading case of “Nazareno vs Arnault,” July 18, 1950, the SC ruled that, unlike the House of Representatives, the Senate was a continuing body. Under the 1987 Constitution, is the Senate still a continuing body? Is there a need for the Senate to republish its rules of procedure in conducting inquiries in aid of legislation?

SUGGESTED ANSWER:

No. The Senate cannot be deemed to be a continuing body. The Senate must republish its rules of procedure.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, in Neri vs. Senate opined that “the present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to “constitute a quorum to do business.”

“Justice Carpio, observes that “Nazareno” was decided under the 1935 Constitution when only eight of the 24 senators were elected every two years such that 16 senators constituting two-thirds of the Senate “always continued into the next Congress.” Since only a majority or 13 of the 24 members were needed to constitute a quorum and do business, the Senate was deemed a continuing body.”

In contrast, under the 1987 Constitution, the term of 12 of the 24 senators expired every three years “leaving less than a majority to continue into the next Congress.” Thus, the present Senate cannot be deemed a continuing body. Ergo, the rules must be republished after the expiration of the term of 12 senators. (visit fellester.blogspot.com)

“The foregoing distinction may appear hair-splitting but it is essential to due process and the rule of law. The Senate Rules of Procedure put at risk the liberty of witnesses and resource persons during investigations. Hence, the Constitution and the rules must be strictly construed in favor of the people and against the Senate.” (Are the Senate Investigation Rules Valid? by CJ Panganiban, Philippine Daily Inquirer, April 06, 2008)


The present Senate of the 14th Congress conducted an inquiry in aid of legislation on the “Hello Garci” tapes which allegedly contained President GMA’s instructions to former Comelec Commissioner Garcillano to manipulate in her favor results of the 2004 presidential elections. The Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and 2006. With respect to the present Senate, however, no effort was undertaken for the publication of these rules when they first opened their session. Is the Senate investigation valid?


SUGGESTED ANSWER:

No. The SC declared invalid for lack of compliance with the publication requirement the previous Senate inquiry in aid of legislation on the “Hello Garci” tapes. “However, the Senate may now call for a new inquiry on the same following the publication of the Senate Rules of Procedure in two major dailies last October 2008.”

The Court cited sec. 21, Art. VI of the 1987 Constitution which mandates the publication of the rules of procedure of either the Senate or the House of Representatives, or any of its respective committees before it may conduct inquiries in aid of legislation. The requisite of publication of the rules is intended to satisfy the basic requirements of due process.

The SC reiterated its ruling in Neri v. Senate Committee on Accountability of Public Officers and Investigations that the phrase “duly published rules of procedure” requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate’s membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm.

The Court said that the respondents cannot justify their non-observance of the constitutionally mandated publication requirement by arguing that the rules have never been amended since 1995 and that they are published in booklet form available to anyone for free, and accessible to the public at the Senate’s internet web page. “The absence of any amendment to the rules cannot justify the Senate’s defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution…The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate,” it said. It added that the respondents’ invocation of the provisions of RA 8792, Electronic Commerce Act of 2000, to support their claim of valid publication through the internet was incorrect, stressing that “the law merely recognizes the admissibility in evidence of electronic data messages and/or electronic documents” but such “does not make the internet a medium for publishing laws, rules and regulations.” (GR No. 170338, Garcillano v. House of Representatives; GR No. 179275, Rañada v. Senate, December 23, 2008)