Fundamental Powers of the State

3 Inherent Powers of the State:

1. Police Power;
2. Power of Eminent Domain or Power of Expropriation; and
3. Power of Taxation

Purpose:

1. for public good or welfare - Police Power
2. for public use - Power of Eminent Domain
3. for revenu - Power of Taxation

  

1. POLICE POWER is the power of promoting the public welfare by restraining and regulating the use of both liberty and property of all the people. It is considered to be the most all-encompassing of the three powers. It may be exercised only by the government. The property taken in the exercise of this power is destroyed because it is noxious or intended for a noxious purpose.

It lies primarily in the discretion of the legislature. Hence, the President, and administrative boards as well as the lawmaking bodies on all municipal levels, including the barangay may not exercise it without a valid delegation of legislative power. Municipal governments exercise this power by virtue of the general welfare clause of the Local Government Code of 1991. Even the courts cannot compel the exercise of this power through mandamus or any judicial process.

Requisites of a valid police measure:

(a.) Lawful Subject – the activity or property sought to be regulated affects the public welfare. It requires the primacy of the welfare of the many over the interests of the few.

(b.) Lawful Means – the means employed must be reasonable and must conform to the safeguards guaranteed by the Bill of Rights.

2. POWER OF EMINENT DOMAIN affects only property RIGHTS. It may be exercised by some private entities. The property forcibly taken under this power, upon payment of just compensation, is needed for conversion to public use or purpose.

The taking of property in law may include:

- trespass without actual eviction of the owner;
- material impairment of the value of the property; or
- prevention of the ordinary uses for which the property was intended.

 

    The property that may be subject for appropriation shall not be limited to private property. Public property may be expropriated provided there is a SPECIFIC grant of authority to the delegate. Money and a chose in action are the only things exempt from expropriation.

Although it is also lodged primarily in the national legislature, the courts have the power to inquire the legality of the right of eminent domain and to determine whether or not there is a genuine necessity therefore.

3. POWER OF TAXATION affects only property rights and may be exercised only by the government. The property taken under this power shall likewise be intended for a public use or purpose. It is used solely for the purpose of raising revenues, to protect the people and extend them benefits in the form of public projects and services (I hope so). Hence, it cannot be allowed to be confiscatory, except if it is intended for destruction as an instrument of the police power.

It must conform to the requirements of due process. Therefore, taxpayers are entitled to be notified of the assessment proceedings and to be heard therein on the correct valuation to be given the property. It is also subject to the general requirements of the equal protection clause that the rule of taxation shall be uniform and equitable.

Tips To Pass The BAR Exams

    Below is a great article of my close friend Atty. Tina to all who are going to take the arduous HANDWRITTEN Philippine Bar Exam essays. A U.P. college alumnus who garnered an average of 90 plus % in the 2 civil service exams (Prof. and Sub-prof.) Her simplicity, soft-spoken voice and bright mind have won my admiration.

    

    During our 1^st year in law school, we were delighted to discover that our mothers were once close friends too as public school teachers in Palawan.  We both love the Desiderata poem. By the way, she is still single and available :)

BAR REVIEW TIPS
by Atty. Ma. Christina G. Castillo


Every lawyer has his or her own tips to pass THE Bar (or top it, if you wish). Allow me to share my thoughts. I hope that this will help you in any way.

Foremost, I believe that passing the Bar is an act of God. Do not commit the mistake that you can fare well on your own, but if you choose to, it's up to you.
I collected these reminders from the bar reviewers, topnotchers, professors, and my experience. What's the difference? This is my own presentation.. :)


ONE word to keep in mind for six months = F-O-C-U-S

ONE thing to pray for = WISDOM

Ask God for wisdom - this is one of my fave Bible verses, not just because of the Bar. I ask God for wisdom in my daily life so He'll guide me towards the right path.

James 1:5(KJV) - If any of you lack wisdom, let him ask of God, that giveth to all men liberally, and upbraideth not; and it shall be given him.

TWO things to do:
1. PRAY, as if everything depended on God
2. STUDY, as if everything depended on you


THREE things to handle efficiently:
1. time - this is the most important.
2. effort
3. money


FOUR-FOLD test:
1. physical
2. emotional/psychological
3. mental, and
4. spiritual well-being


FOUR aids as you answer the Bar:
1. wisdom
2. understanding
3. clarity of thought
4. facility of expression


I will write more pointers next time.
Good luck to the 2009 examinees!

Foreign/Mixed Marriage

      Foreign/Mixed Marriage refers to a marriage contracted between a local (Filipino) and a Foreign national.   This phenomenon has been more widely accepted in the Philippines.

       
     But it is heartbreaking to note that some Filipina women desperately seek a foreign marriage as a means to improve their lives and rise out of poverty.        I hope they grasp what Dr. Jose Rizal said that “Edukasyon ang sagot sa kahirapan” (Education is the answer to overcome poverty) and his Letter to Blumentritt (24 December 1886), “Is it not sad, I said to my countrymen, that we have to learn from a foreigner about ourselves?”

    There are, however, Filipinos who are merely enchanted with Caucasian look and eventually fall in love with that White monkey. (ooppss sorrry :)  Heck,  I get mesmerized  with their pointed nose, brown hair, white skin, and brown, blue or green eyes!

      Foreigners should, however, be aware of our laws, particularly “Anti-Trafficking in Persons Act of 2003 -  R.A. No. 9208" that punishes a person who offers or contracts marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage.

  
        With respect to our family law, the capacity of the foreigner to get married in the Philippines is governed by his national law, a foreign law.                    Thus, he is required to secure a Certificate of Legal Capacity to contract marriage from his embassy in the Philippines in applying for a marriage license.

        If a foreign marriage (all marriages actually) is solemnized abroad in accordance with the formal requirements of the country where celebrated, it shall also be valid in the Philippines pursuant to the rule of lex loci celebrationis.

EXCEPT:

1. Either or both the parties did not have the legal capacity;
 
2. The marriage is bigamous or polygamous;
 
3. Consent of either or both parties is lacking;
 
4. One the parties is psychologically incapacitated;
 
5. Incestuous marriage; or
 
6. Void by reason of public policy.

RELATED ARTICLES:

Concept of Marriage

Good news!

Last year 2008, when carrot was not part my diet, my vision was 100/125. I am nearsighted but I try not to be a myopic person.

But today, I was so surprised when the optometrist told me I have 100/100 vision now. Whew! My sight has been improved after half a year of taking carrot juice or carrot shake in the morning. I wish it were possible to have 20/20 vision again. So now it is time to go to the supermarket to grab a sack of carrot!

Related Article:

Yacon and Carrot

Photocopying of Books: infringement or not?

    Photocopying or buying pirated books is taboo for me.      Even though I was just a poor working law student then, I have never hesitated to buy original textbooks no matter how expensive they were except if the book i urgently need is out of stock.     My ultimate goal is to remunerate the intellect of the author.   After all, I am benefiting from his excellent work and efforts, so why not bless him.   However, sometimes, I am guilty of purchasing hand-me-down novel books (I am not fond of romantic novel).    

    I cannot understand why some law students (or non-law students) photocopy the ENTIRE book but can afford to buy high-tech and expensive cell phone/gadget almost every semester.    

It is not infringement if a student or a NATURAL person photocopies a published work in a SINGLE copy EXCLUSIVELY for research and private study but not for commercial use as permitted by Section 187 of the Intellectual Property Code of the Philippines (R.A. 8293).   Published works are works, which, with the consent of the authors, are made available to the public by wire or wireless means (that includes the use of internet).

The reproduction of the ENTIRE book, or a substantial part thereof or the substantial diminution of the value of the original work, if made WITHOUT the consent of the author shall constitute infringement.   A person infringing the right protected shall pay the owner of the copyright, his assigns or heirs actual, moral and exemplary damages and shall be guilty of a crime punishable by imprisonment.

The protection of the INTELLECTUAL product such as literary, scholarly, scientific or artistic work is called copyright.   To obtain a copyright, the author must apply for a Philippine Copyright at The National Library.      It is thereby the copyright proprietor who shall have the exclusive right to file an action for infringement which has a 2-year prescriptive period.

  

Life is a Fairy-tale

Every man's life is a fairytale written by God's fingers.
~Hans Christian Andersen

 

Who says fairy tales were meant for kids only?   Well, as an adult Thumbelina now, I still devour them.    Reading children’s stories revitalizes my mind and exhilarates my imagination.    My best-loved books are the Classic fairy tales of Hans   Chritian Andersen  and The Chronicles of Narnia by C.S. Lewis which has Christian themes.    (I do not like Harry Potter that much.)  And, of course, movies like Enchanted always amuse the child in me (horror stories do not entertain me). 

Fairy tales entice children and make them use their imagination.  They contain moral values to teach life's lessons, behave accordingly and treat others with respect.   They can even influence our choice of a lover.    

For instance, the story of Cinderella is not really a story of “from rags to riches”.   It rather conveys a sense of motivation in rendering service to others with the right attitude.

She was called Cinderella because she loved to sit in the cinders or hearth after she had done her work.  Hearth is a fireplace or oven used for cooking: its Latin name is focus.    The poor girl was silently focused and patient on doing the housework.  Despite the cruelties, she remained gracious enough to give due respect to her wretch Stepmother and her daughters.    As expected, the reward for her admirable service and attitude is a handsome (figuratively and literally, I think) Prince Charming!

 

There are however children stories nowadays, that can be a bad influence to the youngsters.  So parents, read first every story before it reaches your kids. Enjoy!

Just a little trivia:  C.S. Lewis, the finest Christian author of all times was a close friend of a devout catholic J.R.R. Tolkien, the man behind the Lord of the Rings.  They were both professors at Oxford University and members of the Inklings, an informal literary discussion group.   

Kinds of Evidence

In ascertaining the truth in a judicial proceeding, evidence is generally classified into 3 kinds:

1. Real Evidence – it refers to the thing or corporate object which can be viewed or inspected by the court.

2. Circumstantial Evidence – it indirectly proves a fact in issue based on various

attendant circumstances.

3. Testimonial Evidence – it refers to oral evidence or that which a witness testify

in court. It includes written evidence, such as documentary evidence, depositions and affidavits.

Other classifications of evidence are:

Hearsay evidence;
Evidence aliunde;
Rebuttal evidence.

In the Hierarchy of evidentiary rules:

1. Proof beyond reasonable doubt is the highest, which is required for conviction of an accused in a CRIMINAL case. It is the logical and inevitable result of the evidence on record of the moral certainty of the guilt of the accused.

2. Clear and convincing evidence is often required to overcome a disputable presumption of law, such as the presumption of virginity or the presumption of negligence of common carriers.

3. Preponderance of evidence is the degree of evidence required in CIVIL cases.

4. Substantial Evidence is that which is required to reach a conclusion in ADMINISTRATIVE proceedings.

Theft vs. Robbery

Living (by myself most of the time) in the hustling and bustling Metro Manila for 20 years now can become tiresome yet still a very good place in the Philippines to pursue my career in law.

There are 2 crime incidences I have personally encountered here. Both are crimes against property which are rampant nowadays. First is when my bag containing ten thousand cash intended for my tuition fee was snatched five years ago.

Then, last Saturday, a holdup man pointed a gun at me inside the jeepney at 2 o’clock in the afternoon and took away my bag. Good thing, my wallet had 7 coins only because I was supposed to withdraw yet from an ATM Machine and my cell phone was just a cheap, camera-less Nokia phone. When I had gotten home, I remembered the scripture: “Give thanks in all circumstances……” (1 Thessalonians 5:18)

The first incidence is a crime of THEFT (Art. 308, Revised Penal Code). It is committed by any person who, with intent to gain but WITHOUT violence against, or intimidation of persons or force upon things, shall take personal property of another without the latter’s consent. Theft is consummated when the offender had full possession of the thing, even if he did not have an opportunity to dispose of the same.

The second one is a crime of ROBBERY (Art. 293, RPC). What distinguishes Robbery from theft is that in robbery, the taking of personal property is by means of violence against, or intimidation of any person just like the pointing of a gun at me or force upon things.

If REAL property is occupied or REAL right is usurped by means of violence against, or intimidation of person, the crime is USURPATION. (Art. 312)

Related Article:

Who are the Persons Criminally Liable?

Yacon and Carrot

Last night, inside a supermarket, I curiously asked a woman picking up sweet potatoes right beside yacon or yakon, if the latter needs to be cooked. She said it can be eaten raw. Then she asked what benefit we can get from yacon. I replied, “According to my cousin, who is a doctor, it is good for diabetes. I do not have such kind of disease, I only believe in a trite saying that PREVENTION IS BETTER THAN CURE.”

Yacon is high fiber and low sugar perennial plant. It is sometimes called apple of the earth or “ground apple” because its texture and flavour is similar to that of a fresh apple, watermelon and native turnip (singkamas) .

We were glad to discover that we both have the same church (Bread of Life Ministries http://www.crossroad77.com/). Then she confessed she has a malignant brain tumor. Her doctor said she may die anytime soon, it is only the sustaining grace of God that makes her able to do grocery shopping.  I suggested that consuming carrot regularly can help fight cancer.  I, myself, in the morning, drink carrot shake (with whey milk sometimes) or a cup of carrot juice blended with fruits like apple or banana and other vegetables at least thrice a week.

The high amounts of beta carotene of carrot that changes into Vitamin A in the body, helps eliminate cancer-causing free radicals. As we all know, Vitamin A is also essential for good eyesight. Deficiencies in Vitamin A can cause poor vision, including night vision. However, excessive carrot consumption (3 cups or 3 pounds of carrot juice a day) can cause hypercarotenemia, a condition in which the skin turns orange.

Take a closer look at a sliced carrot; it looks like a human eye, right? That is the wonder of God's creation!

       I suddenly remembered my cancer survivor friend who is using alternative medicine and from whom I have learned that although chemotherapy stops cancer cells from multiplying, it can also harm healthy cells in the body.

I got the woman's contact number.  I was teary-eyed as I bid her goodbye. I promised to pray for her. I was too concerned of her financial condition since she has a 2-year-old son and a husband who gave up his job to take care of her (what a loving husband!). She said God’s mercy nourishes them. At the age of 30, she is too young to die and her family, especially the little child, would definitely miss her. Likewise, she would not be able to continue the accomplishment of the mission of God that she was vigorously telling me.

My heavy heart still managed to thank God for that event which motivated me to be more enthusiastic in achieving a healthy lifestyle.

Sexual Harrasment

R.A. No. 7877 otherwise known as the Anti-Sexual Harassment Act of 1995 declares a policy that the State shall value the dignity of every individual xxxx guarantee full respect for human rights xxxx.

The victim of sexual harassment may be a WOMAN or MAN. It can only be committed if the same is:

1. WORK-related;

2. EDUCATION-related; and

3. TRAINING-related.

 

      The person who may be held liable is one who, having authority, influence, or moral ascendancy over another in a work or training or education environment, such as employer, manager, teacher, etc., DEMANDS, REQUEST or otherwise REQUIRES any SEXUAL FAVOR from another REGARDLESS of whether the demand, request or requirement for submission is accepted by the object of said act. Moreover, any person who directs or induces another or cooperates in the commission thereof without which it would not have been committed shall likewise be held liable. (sec. 3) They shall be penalized upon conviction, by IMPRISONMENT of not less than one (1) month nor more than six (6) months, or a fine.

Sexual harassment is committed when:

In a work-related or employment environment:

1. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely effect said employee;

2. The above acts would impair the employee's rights or privileges under existing labor laws; or

3. The above acts would result in an intimidating, hostile, or offensive environment for the employee.

In an education or training environment:

1. if the victim is under the care, custody or supervision of the offender;

2. if the victim whose education, training, apprenticeship or tutorship is entrusted to the offender;

3. When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or

4. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

Apparently, the usual perpetrators are men and the proximate cause is LUST. Jesus said in Matthew 5:28:

“But I tell you anyone who looks at a woman LUSTfully
has already committed adultery with her in his heart." 

Mama Parraaa!

I do not hesitate to tell a taxi, bus or jeepney driver, who appears to be reckless and lacks right conduct, to slow down. I boldly and gently (I’m afraid to be thrown out of the jeepney window haha) remind them that both him and his passengers have dependent or family that cares for and relies on them thus, they are required to exercise high degree of care. Forgive me, I have always wished for the complete vanishment of all the jeepneys in the Philippines for being the major contributors to air pollution and heavy traffic jam.

I certainly think most of those drivers (especially jeepney drivers) are not aware that they are bound and subject to the provisions of Contract of Transportation. It is a contract whereby a person, natural or juridical, obligates himself to transport person or goods, or both, from one place to another, by land, water, or air, for a price or compensation. The drivers cannot validly argue that they are not bound by the contract since it is not in writing. As a general rule (Article 1356, New Civil Code), contracts shall be obligatory and valid in WHATEVER FORM (whether verbal or in writing). There are only 2 exceptions; it is when the form is needed for:

1. VALIDITY e.g. donation of real property;
2. ENFORCEABILITY under the Statute of Frauds. (Art. 1403 par. 2 , NCC)

The Contract of Transportation falls under NEITHER exceptions. It is imbued with public interest requiring common carriers to carry passengers and goods safely using utmost diligence of very cautious person with due regard for all circumstances. The Law on Common Carriers (Articles 1732 to 1766, Civil Code) imposes an exacting standard. Failure to observe extraordinary diligence renders it liable for any damage that may be sustained by its passengers or goods.

Common carriers are presumed to have been at fault or negligent in case of death of or injuries to passengers or loss of goods except if it is due to a fortuitous event. The award of damages for death is computed on the basis of the life expectancy of the deceased passenger which is 2/3 of 80 less his age at the time of his death. Take for instance, the life expectancy of a 20-year-old deceased passenger is computed below:

80
x .67 (2/3)
53.60 >2/3 of 80;

53.60 – 20 = 33.60 years > life expectancy

The heirs of a deceased passenger are entitled to recover from the negligence of the Common Carriers:

1. the total earnings for the life expectancy;
2. damages for his death;
3. moral damages for mental anguish of the heirs;
4. burial expenses; and
5. attorney’s fees, if a lawsuit has been filed.

Negotiable Instruments

The lifeblood of negotiable instrument is negotiation.

A Negotiable Instrument is a WRITTEN contract as a SUBSTITUTE for money, and its delivery does NOT by itself operate as a payment. It is not a legal tender thus, may be refused by a creditor. Its commercial functions are to supplement the currency of the government and to substitute for money and increase the purchasing medium.

On the other hand, a legal tender is defined as currency that cannot legally be refused in payment of debt or is that which a debtor may compel a creditor to accept in payment of the debt. It generally refers to government-issued CASH Money such as coins and notes.

But is it not amazing that Jesus Christ's life and blood paid the ransom which is the price that must be paid to God for our debt! We accrue spiritual debt every time we fail to honor God by living in obedience to Him through sins of both omission and commission.

1 Timothy 2:5-6

⁵For there is one God and one mediator between God and men, the man Christ Jesus, ⁶who gave himself as a ransom for all men—the testimony given in its proper time.

In relation to the legal concepts, an instrument to be negotiable must contain all the requisites enumerated in Sec. 1 of the Negotiable Instruments Law (Act No. 2031):

1. It must be IN WRITING and SIGNED by the Maker or Drawer;
2. Must contain an UNCONDITIONAL promise or order to pay a sum certain
in money;
3. Must be payable on demand, or at a fixed or DETERMINABLE future time;
4. Must be payable to ORDER or to BEARER; and
5. Where the instrument is addressed to a drawee, he must NAMED or
otherwise indicated therein with reasonable certainty.

Common Forms of Negotiable Instruments:

1. Promissory Note - an unconditional promise to pay; and
2. Bill of Exchange – an unconditional order requiring a person to pay to
bearer.
3. Check – is a bill of exchange drawn on a bank payable on demand.

Other Forms:

1. Certificate of Deposit;
2. Trade Acceptance;
3. Bonds;
4. Drafts; and
5. Letter of Credit.

Similar to, but NOT, Negotiable Instruments:

1. Treasury Warrants;
2. Money Orders;
3. Warehouse Receipts;
4. Bills of Lading; and
5. Trust Receipts.

Under sec. 23, when the signature of the Maker or Drawer is forged, it is the signature that shall become wholly inoperative but the instrument is still operative. Thus, a holder in due course although cannot enforce payment thereof against the maker or drawer can still enforce the same against the indorser.

Whereas, if it is forgery in signature of Indorser, a holder in due course and any party subsequent to the forgery cannot enforce it against the parties to an instrument PRIOR to said forgery. Except, in the case of a check where the drawer is guilty of negligence which causes the bank to honor such a check.

Sec. 52 provides that a holder in due course is one who takes the instrument “in good faith and for value”; and at the time the instrument was negotiated to he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

However, sec. 59 provides that every holder is deemed prima facie (obvious) to be a holder in due course.

Related Article:

Who are the Persons Criminally Liable?

The Benefits of Ginger

I am very thankful to God because I have never been confined in a hospital and I do not wish it either.  I have been dealing only with minor ailments.

Indeed, the Lord has provided everything for us including the natural herbal remedies that are easily available and cost-effective yet gentle and safe.  That is why, every time cough, cold or migraine attack, I immediately exploit the benefit of ginger which is a well-known, common spice ingredients of kitchen. I usually take it as a sugar candy before going to bed. It gives me an instant antidote.

The pain due to headaches, muscle cramps, arthritis, comes mostly from inflammation— a protective response to destruction and swelling of tissues. For this reason, most people rely on nonsteroidal anti-inflammatory drugs (NSAIDs) like “vitamin I,” aka ibuprofen, aspirin, and naproxen, for aches and pains relief.

    But unfortunately, studies show NSAIDs have adverse effects and increase the risk of ulcers, bleeding in the stomach, strokes, heart attack, and kidney damage because it interferes with prostaglandins, the hormone-like compounds that play a role in a wide variety of physiological processes such as the contraction and relaxation of smooth muscle, the dilation and constriction of blood vessels, control of blood pressure, and modulation of inflammation as defined by medicinenet.com.

    So say goodbye to NSAIDs and go for safe and tested Herbal Remedies!

Medicinal Uses of Ginger:

1. Ginger is an effective cure for congestion, cough and cold.

2. It promotes the release of bile from the gallbladder which aids the process

of digestion of lipids.

3. It may also decrease joint pain from arthritis.

4. Ginger compounds are active against a form of diarrhea.

5. It has been found effective treating nausea.

6. It may be useful for treating diabetes.

7. Ginger is a stimulant and carminative, and used frequently for dyspepsia and colic.