BIR ISSUANCES FOR THE MONTH OF JANUARY

JANUARY 2010 VOLUME III, ISSUE No. 1

L C A L C A L C A
LINES LINES LINES
Inside this issue:
BIR issuances
for the month
of January
2
COMELEC Res-
olution No.
8714
4
Republic Act
9851
6
Republic Act
9858
12
Jurisprudence
12
JLs Corner 18

(v) Export Development
Council; (vi) Tourism In-
frastructure and Enterprise
Zone Authority; and (vii)
PHIVIDEC Industrial Au-
thority.

REVENUE MEMORAN-
DUM ORDER NO. 2-2010


REVENUE MEMORANDUM
ORDER NO. 2-2010 issued
on January 8, 2010
amends certain provisions
of Revenue Memorandum
(RMO) No. 4-2007, as
amended by RMO Nos. 32-
2008 and 8-2009, rela-
tive to the limitation on
the amount and period
of acceptance of in-
come and other tax pay-
ments by Revenue Collec-
tion Officers (RCOs) in are-
as where there are Author-
ized Agent Banks.

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

4. There shall be
no limitation in the
amount of cash or
check to be accepted
as payment of annual
income taxes (BIR
Form Nos. 1700, 1701
and 1702) by RCOs
during the April income
tax deadline.

However, for all the
other taxes to be
accepted, the issu-
ance of Revenue Offi-
cial Receipts (ROR)
shall be limited only
to tax payments, in
cash not exceeding
the amount of Twenty
Thousand Pesos (Php
20,0000) per return.
There shall be no limit
on the amount if pay-
ment is made thru
checks .

Section III Policies and
Guidelines, Item No. 2.e
of RMO No. 4-2007 was
likewise amended to read
as follows:

e. For the annual
income tax payment
of individual taxpay-
ers as well as calen-
dar-period corporate
taxpayers, the issu-
ance of RORs shall
start five (5) working
REVENUE REGULATIONS
NO. 1-2010


REVENUE REGULATIONS
NO. 1-2010 issued on Janu-
ary 21, 2010 amends fur-
ther Section 3 of Revenue
Regulations (RR) No. 9-
2001, as last amended by
RR No. 10-2007, expanding
the coverage of taxpayers
required to file returns and
pay taxes through the
BIRs Electronic Filing and
Payment System (eFPS).
The coverage shall include
enterprises enjoying fiscal
incentives granted by other
government agencies such
as those registered with
the: (i) Philippine Economic
Zone Authority; (ii) Board
of Investments; (iii) various
zone authorities covered
under Republic Act No.
9400 (Subic Special Eco-
nomic Zone, Clark Special
Economic Zone and Clark
Freeport Zone, Poro Point
Freeport Zone, Morong Spe-
cial Economic Zone, John
Hay Special Economic
Zone); (iv) Cagayan Special
Economic Zone Authority;
days prior to and un-
til April 15.

REVENUE MEMORAN-
DUM ORDER NO. 6-
2010


REVENUE MEMORANDUM
ORDER NO. 6-2010 is-
sued on January 20,
2010 prescribes the poli-
cies and guidelines in the
stamping of Income Tax
Returns (ITRs) and the
attached audited finan-
cial statements, and the
number of copies of tax
returns to be submitted
and filed.

All concerned offices,
including Authorized
Agent Banks (AABs),
shall receive the ITR by
stamping the official re-
ceiving seal or stamp of
receipt of an internal
revenue office where the
said returns are filed
on the space provided
for in the three (3)
copies of the returns.

The attachments to the
ITR shall also be received
in the same manner, but
for the attached financial
statements the same
shall be stamped re-
ceived only on the
page of the Audit Cer-
tificate. Accordingly, the
other pages of the finan-
cial statements and its
attachments need not
anymore be stamped
received.

Taxpayer shall only
accomplish and file
three (3) copies of tax
BIR ISSUANCES
Page 2 L C A LINES
returns with the AAB
and/or the BIR.

REVENUE MEMORAN-
DUM ORDER NO. 7-
2010


REVENUE MEMORANDUM
ORDER NO. 7-2010 issued
on January 25, 2010 pre-
scribes the guidelines and
procedures in handling
Letter Notices (LNs)
generated thru the
Tax Reconciliation Sys-
tem (TRS) and Recon-
ciliation of Listing for
Enforcement System
(RELIEF)/Third Party
Matching - Bureau of
Customs (TPM-BOC) Da-
ta Program for the Year
2008, which shall cover
the Income, Value-Added,
Percentage and Withhold-
ing tax liabilities for taxa-
ble year 2008 of indi-
vidual and corporate
taxpayers registered
under the Large Tax-
payers Service Regular,
Excise and Large Taxpay-
ers District Offices
(LTDOs) and Revenue
Region Nos. 4 to 9.

LNs covering taxable year
2008 shall be deployed
based on the parameters
set by the a) Withholding
Tax Division (WTD) for
TRS-LN, together with
the Details of Withhold-
ing Agents/Payors and
Payees/Income Recipient
Report (DWAPR), and the
b) Audit Information, Tax
Exemptions and Incen-
tives Division (AITEID) for
RELIEF-LN, together with
the Details of Taxpayers
Customers/Suppliers
(DTCS) and/or Details of
Importations with Return
Information Matching
(DIRIM), via the Infor-
mation Delivery Portal
(IDP), as the case may
be, and shall be ap-
proved by the Commis-
sioner of Internal Reve-
nue (CIR), through the
Overall Head LN Task
Force (LNTF).

TRS-LNs covering taxa-
ble year 2008 shall be
consolidated with RELIEF
-LNs and shall be han-
dled by the same investi-
gating office (RO who
shall handle TRS-LN shall
be the same RO to han-
dle RELIEF-LN) wherein
the report of investiga-
tion/verification shall be
forwarded to the Office
of the Commissioner of
Internal Revenue
(OCIR), Attention:
Overall Head LNTF, for
proper disposition.

The LNTF/concerned in-
vestigating offices shall
prepare a Follow-up Let-
ter and serve the same
to the taxpayer if no re-
sponse was received af-
ter 5 days from receipt
by the taxpayer of the
LN. In the event a tax-
payer who has been is-
sued an LN refutes the
discrepancy, he/she/it
shall be given an oppor-
tunity to reconcile his/
her/its records with
those of the BIR within
10 days from receipt of
his/her/its LN and to
submit documentary
proofs in support of his/
her/its arguments.

If after 10 days from
receipt of Follow-up
Letter, no response
was received from the
taxpayer, or he/she/it
fails to submit the re-
quired documents after
filing the protest within
the 5-day period after
receipt of the LN, the
LNTF/concerned investi-
gating office shall en-
dorse the docket and
recommend to the OCIR
(through the Overall
Head LNTF) the issuance
of an issue-based Letter
of Authority (LA) to
cover specifically
Income, Value-Added,
Percentage and With-
holding Taxes Due to
Discrepancy/ies Reflect-
ed in the LN. A No-
tice for Informal Confer-
ence, together with the
LA, shall be served to the
taxpayer. If the taxpayer
fails to settle his/her/its
Income, Value-Added,
Percentage and With-
holding Tax liabilities re-
sulting from LN discrep-
ancy/ies within 5 days
from receipt of Notice
for Informal Conference
and LA, the LNTF/
concerned investigating
office shall endorse the
docket to the OCIR,
Attention: Overall Head
LNTF for any or a combi-
nation of the following
actions:

a. The issuance of the
Preliminary Assess-
ment Notice (PAN)/
Final Assessment
Notice (FAN) in ac-
cordance with the
provisions of Reve-
nue Regulations (RR)
No. 12-99;
the OCIR, Attention:
Overall Head LNTF for
the issuance of the
Preliminary Assessment
Notice (PAN)/Final As-
sessment Notice (FAN)
in accordance with the
provisions of Revenue
Memorandum Circular
No. 23 2000.
For LNs being handled
by the Revenue District
Office (RDO)/Large
Taxpayer Regular Audit
Divisions (LTRAD)/Large
Taxpayers Excise Audit
Divisions (LTEAD)/Large
Taxpayers District Offic-
es (LTDO) originally
assigned (with LAs is-
sued whether the in-
vestigation is on-going
or terminated) or as-
sumed (referred by the
LNTF), the respective
investigating offices
shall resolve the LN dis-
crepancy within 30 days
from receipt of the origi-
nal/referral assignments.
After the lapse of the 30-
day period and there is
no resolution or action
taken, except when the
investigation office rec-
ommends for the admin-
istrative sanction of sus-
pension and temporary
closure of business under
RMO No. 3 2009 or
recommends for the is-
suance of an SDT, the LN
will be referred back
without delay to the
LNTF, which shall imme-
diately take-over the
case for resolution of the
LN discrepancy.

For LNs being handled by
the LNTF, whether origi-
nally assigned (LNs with-
out LAs) or assumed
(referred by RDO/LTRAD/
LTEAD/LTDO), the LNTF
shall resolve the LN dis-
crepancy within 60 days
from receipt thereof. Af-
ter the lapse of the 60-
day period and there is
still no resolution or ac-
tion taken thereon, ex-
cept when the investiga-
tion office recommends
for the administrative
sanction of suspension
and temporary closure of
business under RMO No.
3 2009 or recommends
for the issuance of an
SDT, the LN will be re-
ferred, without delay, to
the appropriate investi-
gating office, which has
jurisdiction over the prin-
cipal place of business of
the concerned taxpayer
and such investigating
office shall immediately
take-over the case for
resolution of the LN dis-
crepancy.


Page 3 VOLUME III, ISSUE No. 1
BIR ISSUANCES

b. If the under-
declaration is 30%
or more, the tax-
payer may be rec-
ommended for the
imposition of ad-
ministrative sanction
of suspension and
temporary closure
of business in ac-
cordance with the
provisions of RMO
No. 3 2009 (Oplan
Kandado);

c. The issuance of the
compulsory process
of Subpoena Duces
Tecum (SDT).

The issuance and en-
forcement of the SDT
must be made in strict
compliance with the
procedures enunciated in
RMO No. 35 - 1990 and
RMO No. 9 - 2003 re-
quiring the taxpayer to
appear before the
OVERALL HEAD LNTF
thru the LN Secretariat
for the presentation or
production of his books
of accounts and other
accounting records. If
the taxpayer fails, refus-
es or neglects to comply
with the summons con-
tained in the SDT, the
LNTF/concerned investi-
gating office shall en-
dorse the docket to
the appropriate legal
office in the National
or Regional Offices un-
der its respective juris-
diction for the filing of a
criminal case for viola-
tion of Section 266 of the
NIRC of 1997, as amend-
ed. The investigating
team/office shall likewise
endorse the docket to
Page 4 L C A LINES
COMELEC RESOLUTION NO. 8714
RULES AND REGULA-
TIONS ON THE: (1)
BEARING, CARRYING
OR TRANSPORTING
OF FIREARMS OR
OTHER DEADLY WEAP-
ONS; AND (2) EM-
PLOYMENT, AVAIL-
MENT OR ENGAGE-
MENT OF THE SER-
VICES OF SECURITY
PERSONNEL OR BODY-
GUARDS, DURING THE
ELECTION PERIOD
FOR THE MAY 10,
2010 NATIONAL AND
LOCAL ELECTIONS.


Who May Bear Fire-
arms
During the election peri-
od, no person shall bear,
carry or transport fire-
arms or other deadly
weapons in public places,
including any building,
street, park, private ve-
hicle or public convey-
ance, even if licensed to
possess or carry the
same, unless authorized
in writing by the Com-
mission. The issuance of
firearms licenses shall be
suspended during the
election period.
Only regular members of
the Philippine National
Police, the Armed Forces
of the Philippines and
other law enforcement
agencies of the Govern-
ment who are duly depu-
tized in writing by the
Commission for election
duty may be authorized
to carry and possess fire-
arms during the election
period: Provided, That,
when in the possession
of firearms, the depu-
tized law enforcement
officer must be: (a) in
full uniform showing
clearly and legibly his
name, rank and serial
number, which shall re-
main visible at all times,
and (b) in the actual per-
formance of this election
duty in the specific area
designed by the Com-
mission.

Other law enforcement
agencies of the govern-
ment who can carry and
possess firearms during
the election period shall
refer to:

1. Guards of the National
Bureau of Prisons, Pro-
vincial, and City Jails;
2. Members of the Bu-
reau of Jail Management
and Penology;
3. Members of the Cus-
tom Enforcement and
Security and Customs
Intelligence and Investi-
gation Service of the Bu-
reau of Customs;
4. Port Police Depart-
ment, Philippine Port Au-
thority;
5. Philippine Economic
Zone Authority Police
Force;
6. Government guard
forces;
7. Law Enforcement
Agents and investigation
Agents of the Bureau of
Immigration;
8. Members of the Manila
International Airport Au-
thority (MIAA) Police
Force;
9. Members of the Mac-
tan-Cebu International
Airport Authority
(MCIAA) Police Force;
10. Personnel of the law
Enforcement service of
the land Transportation
Office (LTO);
11. Members of the Phil-
ippine Coast Guard, De-
partment of Transporta-
tion and Communication;
12. Members of the Cebu
Port Authority (CPA) Po-
lice Force;
13. Agents of ISOG of
the Witness Protection
Program;
14. Members of the Vide-
ogram Regulatory Board
performing law enforce-
ment functions;
15. Members of the Se-
curity Investigation and
Transport Department
(STTD), Cash Depart-
ment (CD), including
members of the Office of
Special Investigation
(OSI), Branch Operations
and Department of Gen-
eral Services of the
Bangko Sentral ng Pilipi-
nas;
16. Personnel of the Of-
fice of the sergeant-At-
Arms (OSAA) of the Sen-
ate or the House of Rep-
resentatives and the
OSAA-certified / desig-
nated senators/
congressmens security
escorts;
17. Postal Inspectors,
Investigators, Intelli-
gence Officers and Mem-
bers of the Inspection
Service of the Philippine
Postal Corporation;
18. Election Officers,
Provincial Election Super-
visors, Regional Attor-
neys, Assistant Regional
Election Directors, Re-
gional Election Directors,
Directors III and IV,
Lawyers in the Main Of-
fice of the Commission
on Elections and the
Members of the Commis-
sion;
19. Members of the Law
Enforcement Section of
the Bureau of Fisheries
and Aquatic Resources;
20. Members of the
Tourist Security Division
of the Department of
Tourism;
21. Personnel of the In-
telligence Division of the
Central Management In-
formation Office, Depart-
ment of Finance;
22. Personnel of the In-
spection and Monitoring
service of the National
Police Commission;
23. Personnel of the
Special Action and Inves-
tigation division, Forest
Officers defined under
PD 705 and Department
of Environment and Nat-
ural Resources (DENR)
DAO No. 1997-32,
Forest/Park Rangers,
Wildlife Officers and all
forest protection and law
enforcement officers of
the DENR;
24. Personnel of the In-
telligence and Security,
Office of the Secretary,
Department of Foreign
Affairs;
25. Personnel of the Phil-
ippine Drug Enforcement
Agency;
26. Personnel of the Phil-
ippine Center for Trans-
national Crime (PCTC);
27. Personnel of the Na-
tional Intelligence Coor-
dination Agency;
28. Personnel of the Na-
tional Bureau of Investi-

Page 5 L C A LINES
The transport of firearms
of those who are engaged
in the manufacture, im-
portation, exportation,
purchase, sale of fire-
arms, explosives and their
spare parts or those in-
volving the transportation
of firearms, explosives
and their spare parts,
may, with prior notice to
the Commission, be au-
thorized by the Director
General of the PNP pro-
vided that the firearms,
explosives and their spare
parts are immediately
transported to the Fire-
arms and Explosives Divi-
sion, CSG, PNP.


Definition of Terms

(a) Election Period re-
fers to the election period
prescribed in Comelec
Resolution No. 8646 dat-
ed 14 July 2009 which is
from January 2010 to 09
June 2010;

(b) Firearm shall refer to
the "firearm" as defined in
existing laws, rules and
regulations. The term also
includes airgun, airsoft
guns, and their replica/
imitation in whatever
form that can cause an
ordinary person to believe
that they are real;

(c) Deadly weapon in-
cludes blade instrument,
hand grenades or other
explosives, except pyro-
technics.
A blade instrument is not
covered by the prohibition
when possession of the
blade instrument is nec-
essary to the occupation
of the possessor or when
it is used as a tool for le-
gitimate activity.


Suspension of Issu-
ance of Firearms Li-
censes.

The PNP is directed to
suspend the issuance of
firearms licenses during
the election period.
The processing and ap-
proval of new firearms
license, including re-
newal of license, may
continue on condition
that the new license
and firearm shall be
kept in deposit with the
Firearms and Explosives
Division of the PNP until
after the election peri-
od.
Firearms licenses issued
in violation of Comelec
Resolution 8714 are null
and void, without preju-
dice to the filling of the
appropriate administra-
tive and/or criminal
charges against the
holder or those respon-
sible for the issuance of
the license.


Who may be assigned
security
personnel or body-
guards

When circumstances
warrant, including but
not limited to threats to
life and security, a can-
didate to public office,
including incumbent
public officer, and pri-
vate individual, may,
upon application, be
assigned regular mem-
bers of the PNP or the
AFP or the National Bu-
reau of Investigation,
and as augmentation,
During the election peri-
od, no candidate for pub-
lic office, including in-
cumbent public officers
seeking election to any
public office, shall em-
ploy, avail himself of or
engage the services of
security personnel or
bodyguards, whether or
not such bodyguards are
regular members or of-
ficers of the Philippine
National Police, the
Armed Forces of the Phil-
ippines or other law en-
forcement agency of the
Government: Provided,
That when circumstances
warrant, including but
not limited to threats to
life and security of a can-
didate, he may be as-
signed by the Commis-
sion, upon due applica-
tion, regular members of
the Philippine National
Police, the Armed Forces
of the Philippines or oth-
er law enforcement
agency who shall provid-
ed him security for the
duration of the election
period. The officers as-
signed for security duty
to a candidate shall be
subject to the same re-
quirement as to wearing
of uniforms prescribed in
the immediately preced-
ing section unless ex-
empted in writing by the
Commission.
If at any time during the
election period, the
ground for which the au-
thority to engage the
services of security per-
sonnel has been granted
shall cease to exist or for
any other valid cause,
the Commission shall
revoke the said authori-
ty.
gation;
29. Personnel of the
Presidential Anti-
Smuggling Group
(PASG); and
30. Field officers of the
Fertilizer and Pesticide
Authority Department of
Agriculture.

(b) Member of pri-
vately owned or
operated security,
investigative, pro-
tective or intelli-
gence agencies duly
authorized by the
PNP, provided that
when in the posses-
sion of firearm, he
is; (1) in the agency
-prescribed uniform
with agency-issued
identification card
prominently dis-
played and visible at
all times, showing
clearly his name
and position; and
(2) in the actual
performance of duty
at his specified
place/area of duty.

The heads of other law
enforcement agencies
and Protective Agents of
Private Detective Agen-
cies enumerated above
shall, not later than 29
December 2009, submit
a colored 4" x 5" pic-
ture, with description,
of the authorized uni-
form of the office, to
the Committee on the
Ban on Firearms and
Security Personnel
(CBFSP) herein estab-
lished.


Security Personnel
and Bodyguards


Page 6 VOLUME III, ISSUE No. 1
duly license/authorized
Protective Agents of pri-
vate Detective Agencies,
to provide security, for
the duration of the elec-
tion period.
All existing authority
granting security person-
nel or bodyguards are
hereby revoked at the
start of the election peri-
od. The affected officials
of individuals who want
to continue to avail of or
engage the services of
security personnel or
bodyguard, shall apply
for the employment,
availment, or engage-
ment of security person-
nel or bodyguards.

REPUBLIC ACT NO. 9851
AN ACT DEFINING
AND PENALIZING
CRIMES AGAINST IN-
TERNATIONAL HU-
MANITARIAN LAW,
GENOCIDE AND OTH-
ER CRIMES AGAINST
HUMANITY, OR-
GANIZZING JURIS-
DICTION, DESIGNAT-
ING SPECIAL COURTS,
AND FOR RELATED
PURPOSES

"Philippine Act on
Crimes Against Inter-
national Humanitarian
Law, Genocide, and
Other Crimes Against
Humanity".

Definition of Terms

(a) "Apartheid' means
inhumane acts commit-
ted in the context of an
institutionalized regime
of systematic oppression
and domination by one
racial group or groups
and committed with the
intention of maintaining
that regime
(b) "Arbitrary deporta-
tion or forcible transfer
of population" means
forced displacement of
the persons concerned
by expultion by expul-
sion or other coercive
acts from the area in
which they are lawfully
present, without grounds
permitted under domes-
tic or international law.
(c) "Armed conflict"
means any use of force
or armed violence be-
tween States or a pro-
tracted armed violence
between governmental
authorities and organized
armed groups or between
such groups within that
State: Provided, That
such force or armed vio-
lence gives rise, or may
give rise, to a situation to
which the Geneva Con-
ventions of 12 August
1949, including their com-
mon Article 3, apply.
Armed conflict may be
international, that is, be-
tween two (2) or more
States, including belliger-
ent occupation; or non-
international, that is, be-
tween governmental au-
thorities and organized
armed groups or between
such groups within a
state. It does not cover
internal disturbances or
tensions such as riots,
isolated and sporadic acts
of violence or other acts
of a similar nature.
(d) "Armed forces" means
all organized armed forc-
es, groups and units that
belong to a party to an
armed conflict which are
under a command respon-
sible to that party for the
conduct of its subordi-
nates. Such armed forces
shall be subject to an in-
ternal disciplinary system
which enforces compli-
ance with International
Humanitarian Law
(e) "Attack directed
against any civilian popu-
lation" means a course of
conduct involving the
multiple commission of
acts referred to in Section
6 of this Act against any
civilian population, pursu-
ant to or in furtherance of
a State or organizational
policy to commit such at-
tack.
(f) "Effective command
and control" or " effective
authority and control"
means having the materi-
al ability to prevent and
punish the commission of
offenses by subordinates.
(g) "Enforced or involun-
tary disappearance of
persons" means the ar-
rest, detention, or abduc-
tion of persons by, or with
the authorization support
or acquiescence of, a
State or a political organi-
zation followed by a re-
fusal to acknowledge that
deprivation of freedom or
to give information on the
fate or whereabouts of
those persons, with the
intention of removing
from the protection of the
law for a prolonged period
of time
(h) "Enslavement" means
the exercise of any or all
of the powers attaching to
the right of ownership
over a person and in-
cludes the exercise of
such power in the course
of trafficking in persons,
in particular women and
children.
(i) "Extermination" means
the international infliction
of conditions of life, inter
alia, the deprivation of
access to food and medi-
cine, calculated to bring
about the destruction of a
part of a population.
(j) " Forced pregnancy"
means the unlawful con-
finement of a women to
be forcibly made preg-
nant, with the intent of
adverse party;
(4) a person who, be-
fore the beginning of
hostilities, was consid-
ered a stateless person
or refugee under the
relevant international
instruments accepted
by the parties to the
conflict concerned or
under the national leg-
islation of the state of
refuge or state of resi-
dence;
(5) a member of the
medical personnel as-
signed exclusively to
medical purposes or to
the administration of
medical units or to the
operation of or admin-
istration of medical
transports; or
(6) a member of the
religious personnel who
is exclusively engaged
in the work of their
ministry and attached
to the armed forces of
a party to the conflict,
its medical units or
medical transports, or
non-denominational,
noncombatant military
personnel carrying out
functions similar to
religious personnel.
(r) " Superior" means:
(1) a military com-
mander or a person
effectively acting as a
military commander;
or
(2) any other superior,
in as much as the
crimes arose from ac-
tivities within the effec-
tive authority and con-
trol of that superior.
(s) "Torture" means the
intentional infliction of
severe pain or suffering,
whether physical, men-
tal, or psychological, up-
on a person in the custo-
dy or under the control
Page 7
L C A LINES

spare the life of anybody,
even of persons manifest-
ly unable to defend them-
selves or who clearly ex-
press their intention to
surrender.
(o) "Perfidy" means acts
which invite the confi-
dence of an adversary to
lead him/her to believe
he/she is entitled to, or is
obliged to accord, protec-
tion under the rules of
International Humanitari-
an Law, with the intent to
betray that confidence,
including but not limited
to:
(1) feigning an intent to
negotiate under a flag
of truce;
(2) feigning surrender;
(3) feigning incapacita-
tion by wounds or sick-
ness;
(4) feigning civilian or
noncombatant status;
and
(5) feigning protective
status by use of signs,
emblems or uniforms of
the United Nations or of
a neutral or other State
not party to the conflict.
(p) "Persecution" means
the international and se-
vere deprivation of funda-
mental rights contrary to
international law by rea-
son of identity of the
group or collectivity.
(q) "Protect person" in an
armed conflict means:
(1) a person wounded,
sick or shipwrecked,
whether civilian or mili-
tary;
(2) a prisoner of war or
any person deprived of
liberty for reasons relat-
ed to an armed conflict;
(3) a civilian or any per-
son not taking a direct
part or having ceased to
take part in the hostili-
ties in the power of the
affecting the ethnic com-
position of any popula-
tion carrying out other
grave violations of inter-
national law.
(k) "Hors de Combat"
means a person who:
(1) is in the power of
an adverse party;
(2) has clearly ex-
pressed an intention to
surrender; or
(3) has been rendered
unconscious or other-
wise incapacitated by
wounds or sickness
and therefore is inca-
pable of defending
himself: Provided, that
in any of these cases,
the person form any
hostile act and does
not attempt to escape.
(l) "Military necessity"
means the necessity of
employing measures
which are indispensable
to achieve a legitimate
aim of the conflict and
are not otherwise prohib-
ited by International Hu-
manitarian Law
(m) "Non-defended local-
ity" means a locality that
fulfills the following con-
ditions:
(1) all combatants, as
well as mobile weapons
and mobile military
equipment, must have
been evacuated;
(2) no hostile use of
fixed military installa-
tions or establishments
must have been made;
(3) no acts of hostility
must have been com-
mitted by the authori-
ties or by the popula-
tion; and
(4) no activities in sup-
port of military opera-
tions, must have been
undertaken.
(n) "No quarter will be
given' means refusing to
Page 8 VOLUME III, ISSUE No. 1
of the accused; except
that torture shall not
include pain or suffering
arising only from, inher-
ent in or incidental to,
lawful sanctions.
(t) "Works and installa-
tions containing danger-
ous forces" means
works and installations
the attack of which may
cause the release of
dangerous forces and
consequent severe loss-
es among the civilian
population, namely:
dams, dikes, and nucle-
ar, electrical generation
stations.

War Crimes. - For the
purpose of this Act,
"war crimes" or "crimes
against International
Human Humanitarian
Law" means:

(a) In case of an inter-
national armed conflict,
grave breaches of the
Geneva Conventions of
12 August 1949, name-
ly, any of the following
acts against persons or
property protected un-
der provisions of the
relevant Geneva Con-
vention:
(1) Willful killing;
(2) Torture or inhu-
man treatment, in-
cluding biological ex-
periments;
(3) Willfully causing
great suffering, or
serious injury to body
or health;
(4) Extensive destruc-
tion and appropriation
of property not justi-
fied by military neces-
sity and carried out
unlawfully and wan-
tonly;
(5) Willfully depriving
a prisoner of war or
other protected per-
son of the rights of
fair and regular trial;
(6) Arbitrary deporta-
tion or forcible transfer
of population or unlaw-
ful confinement;
(7) Taking of hostages;
(8) Compelling a prison-
er a prisoner of war or
other protected person
to serve in the forces of
a hostile power; and
(9) Unjustifiable delay
in the repatriation
of prisoners of war
or other protected
persons.

(b) In case of a non-
international armed con-
flict, serious violations of
common Article 3 to the
four (4) Geneva Conven-
tions of 12 August 1949,
namely , any of the fol-
lowing acts committed
against persons taking no
active part in the hostili-
ties, including member of
the armed forces who
have laid down their arms
and those placed hors de
combat by sickness,
wounds, detention or any
other cause;
(1) Violence to life and
person, in particular,
willful killings, mutila-
tion, cruel treatment
and torture;
(2) Committing outrag-
es upon personal digni-
ty, in particular, humili-
ating and degrading
treatment;
(3) Taking of hostages;
and
(4) The passing of sen-
tences and the carrying
out of executions with-
out previous judgment
pronounced by a regu-
larly constituted court,
affording all judicial
guarantees which are
generally recognized as
indispensable.
(c) Other serious viola-
tions of the laws and
customs applicable in
armed conflict, within
the established frame-
work of international
law, namely:
(1) Internationally di-
recting attacks against
the civilian population
as such or against indi-
vidual civilians not tak-
ing direct part in hostili-
ties;
(2) Intentionally direct-
ing attacks against civil-
ian objects, that is, ob-
ject which are not mili-
tary objectives;
(3) Intentionally direct-
ing attacks against
buildings, material,
medical units and
transport, and person-
nel using the distinctive
emblems of the Geneva
Conventions or Addi-
tional Protocol III in
conformity with inten-
tional law;
(4) Intentionally direct-
ing attacks against per-
sonnel, installations,
material, units or vehi-
cles involved in a hu-
manitarian assistance or
peacekeeping mission in
accordance with the
Charter of the United
Nations, as ling as they
are entitled to the pro-
tection given to civilians
or civilian objects under
the international law of
armed conflict;
(5) Launching an attack
in the knowledge that
such attack will cause
incidental loss of life or
injury to civilians or
damage to civilian ob-
jects or widespread,
long-term and severe
damage to the natural
environment which
would be excessive in
relation to the concrete
and direct military ad-
vantage anticipated;
(6) Launching an attack
against works or instal-
lations containing dan-
gerous forces in the
knowledge that such
attack will cause exces-
sive loss of life, injury to
civilians or damage to
civilian objects, and
causing death or serious
injury to body or
health .
(7) Attacking or bom-
barding, by whatever
means, towns, villages,
dwellings or buildings
which are undefended
and which are not mili-
tary objectives, or mak-
ing non-defended locali-
ties or demilitarized
zones the object of at-
tack;
(8) Killing or wounding
a person in the
knowledge that he/she
is hors de combat, in-
cluding a combatant
who, having laid down
his/her arms or no long-
er having means of de-
fense, has surrendered
at discretion;
(9) Making improper
use of a flag of truce, of
the flag or the military
insignia and uniform of
the enemy or of the
United Nations, as well
as of the distinctive em-
blems of the Geneva
Conventions or other
protective signs under
International Humani-
tarian Law, resulting in
death, serious personal
injury or capture;
(10) Intentionally di-
recting attacks against
buildings dedicated to
religion, education, art,
science or charitable
purposes, historic mon-
uments, hospitals and
places where the sick
and wounded are col-
lected, provided they
are not military objec-
tives. In case of doubt
whether such building
or place has been used
to make an effective
contribution to military
action, it shall be pre-
sumed not to be so
used;
(11) Subjecting persons
who are in the power of
an adverse party to
physical mutilation or to
medical or scientific ex-
periments of any kind,
or to removal of tissue
or organs for transplan-
tation, which are neither
justified by the medical,
dental or hospital treat-
ment of the person con-
cerned nor carried out
in his/her interest, and
which cause death to or
seriously endanger the
health of such person or
persons;
(12) Killing, wounding
or capturing an adver-
sary by resort to perfi-
dy;
(13) Declaring that no
quarter will be given;
(14) Destroying or seiz-
ing the enemy's proper-
ty unless such destruc-
tion or seizure is imper-
atively demanded by
the necessities of war;
(15) Pillaging a town or
place, even when taken
by assault;
(16) Ordering the dis-
placements of the civil-
ian population for rea-
sons related to the con-
flict, unless the security
of the civilians involved
or imperative military
reasons so demand;
(17) Transferring, di-
rectly or indirectly, by
the occupying power of
parts of its own civilian
population into the terri-
tory it occupies, or the
deportation or transfer
of all or parts of the
population of the occu-
pied territory within or
outside this territory;
(18) Committing out-
rages upon personal
dignity, in particular,
humiliating and degrad-
ing treatments;
(19) Committing rape,
sexual slavery, enforced
prostitution, forced
pregnancy, enforced
sterilization, or any oth-
er form of sexual vio-
lence also constituting a
grave breach of the Ge-
neva Conventions or a
serious violation of com-
mon Article 3 to the Ge-
neva Conventions;
(20) Utilizing the pres-
ence of a civilian or oth-
er protected person to
render certain points,
areas or military forces
immune from military
operations;
(21) Intentionally using
starvation of civilians as
a method of warfare by
depriving them of ob-
jects indispensable to
their survival, including
willfully impeding relief
supplies as provided for
under the Geneva Con-
ventions and their Addi-
tional Protocols;
(22) In an international
armed conflict, compel-
ling the nationals of the
hostile party to take
part in the operations of
war directed against
their own country, even
if they were in the bel-
ligerent's service before
the commencement of
the war;
(23) In an international
armed conflict, declar-
ing abolished, suspend-
ed or inadmissible in a
court of law the rights
and actions of the na-
tionals of the hostile
party;
(24) Committing any of
the following acts:
(i) Conscripting, en-
listing or recruiting
children under the age
of fifteen (15) years
into the national
armed forces;
(ii) Conscripting, en-
listing or recruiting
children under the age
of eighteen (18) years
into an armed force or
group other than the
national armed forc-
es; and
(iii) Using children
under the age of
eighteen (18) years to
participate actively in
hostilities; and
(25) Employing means
of warfare which are
prohibited under inter-
national law, such as:
(i) Poison or poisoned
weapons;
(ii) Asphyxiating, poi-
sonous or other gas-
es, and all analogous
liquids, materials or
devices;
(iii) Bullets which ex-
pand or flatten easily
in the human body,
such as bullets with
hard envelopes which
do not entirely cover
the core or are
pierced with incisions;
and
(iv) Weapons, projec-
tiles and material and
methods of warfare
which are of the na-
ture to cause super-
fluous injury or un-
necessary suffering or
which are inherently
indiscriminate in vio-
lation of the interna-
tional law of armed
conflict.
Any person found guilty of
committing any of the
acts specified herein shall
suffer the penalty provid-
ed under Section 7 of this
Act.

Genocide (a) "genocide"
means any of the follow-
ing acts with intent to
destroy, in whole or in
part, a national, ethnic,
racial, religious, social or
any other similar stable
and permanent group as
such:
(1) Killing members
of the group;
(2) Causing serious
bodily or mental
harm to members of
the group;
(3) Deliberately in-
flicting on the group
conditions of life
calculated to bring
about its physical
destruction in whole
or in part;
(4) Imposing
measures intended
to prevent births
within the group;
and
(5) Forcibly trans-
ferring children of
the group to anoth-
er group.

(b) It shall be unlawful
for any person to direct-
ly and publicly incite
others to commit geno-
cide.

Any person found guilty
of committing any of
the acts specified in
paragraphs (a) and (b)
of this section shall suf-
fer the penalty provided
under Section 7 of this
Act.

Other Crimes Against
Humanity. - "other
crimes against humani-
ty" means any of the
following acts when
committed as part of a
widespread or system-
atic attack directed
against any civilian pop-
ulation, with knowledge
of the attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deporta-
tion or forcible trans-
fer of population;
(e) Imprisonment or
other severe depriva-
tion of physical liberty
L C A LINES
Page 9
in violation of funda-
mental rules of interna-
tional law;
(f) Torture;
(g) Rape, sexual slav-
ery, enforced prostitu-
tion, forced pregnancy,
enforced sterilization, or
any other form of sexual
violence of comparable
gravity;
(h) Persecution against
any identifiable group or
collectivity on political,
racial, national, ethnic,
cultural, religious, gen-
der, sexual orientation
or other grounds that
are universally recog-
nized as impermissible
under international law,
in connection with any
act referred to in this
paragraph or any crime
defined in this Act;
(i) Enforced or involun-
tary disappearance of
persons;
(j) Apartheid; and
(k) Other inhumane
acts of a similar charac-
ter intentionally causing
great suffering, or seri-
ous injury to body or to
mental or physical
health.

Any person found guilty of
committing any of the
acts specified herein shall
suffer the penalty provid-
ed under Section 7 of this
Act.

Individual Criminal Re-
sponsibilities. - (a) In
addition to existing provi-
sions in Philippine law on
principles of criminal re-
sponsibility, a person shall
be criminally liable as
principal for a crime de-
fined and penalized in this
Act if he/she:
(1) Commits such a
crime, whether as an
individual, jointly with
another or through an-
other person, regard-
less of whether that
other person is crimi-
nally responsible;
(2) Orders, solicits or
induces the commis-
sion of such a crime
which in fact occurs or
is attempted;
(3) In any other way
contributes to the com-
mission or attempted
commission of such a
crime by a group of
person acting with a
common purpose. Such
contribution shall be
intentional and shall
either:
(i) be made with the
aim of furthering the
criminal activity or
criminal purpose of
the group, where
such activity or pur-
pose involves the
commission of a
crime defined in this
Act; or
(ii) be made in the
knowledge of the
intention of the
group to commit the
crime.
(b) A person shall be
criminally liable as ac-
complice for facilitating
the commission of a
crime defined and penal-
ized in this Act if he/she
aids, abets or otherwise
assists in its commission
or attempted commis-
sion, including providing
the means for its com-
mission.
(c) A person shall be
criminally liable for a
crime defined and penal-
ized in this Act if he/she
attempts to commit such
a crime by taking action
that commences its exe-
cution by means of a
substantial step, but the
crime does not occur
because of circumstanc-
es independent of the
person's intention. How-
ever, a person who
abandons the effort to
commit the crime or oth-
erwise prevents the com-
pletion of the crime shall
not be liable for punish-
ment under this Act for
the attempt to commit
the same if he/she com-
pletely and voluntarily
gave up the criminal pur-
pose.


Responsibility of Su-
periors. - In addition to
other grounds of criminal
responsibility for crimes
defined and penalized
under this Act, a superior
shall be criminally re-
sponsible as a principal
for such crimes commit-
ted by subordinates un-
der his/her effective
command and control, or
effective authority and
control as the case may
be, as a result of his/her
failure to properly exer-
cise control over such
subordinates, where:

(a) That superior either
knew or, owing to the
circumstances at the
time, should have known
that the subordinates
were committing or
about to commit such
crimes;
(b) That superior failed
to take all necessary and
reasonable measures
within his/her power to
prevent or repress their
commission or to submit
the matter to the compe-
tent authorities for in-
vestigation and prosecu-
tion.

Non-prescription. -
The crimes defined and
penalized under this Act,
their prosecution, and
the execution of sentenc-
es imposed on their ac-
count, shall not be subject
to any prescription.

Orders from a Superior.
- The fact that a crime
defined and penalized un-
der this Act has been
committed by a person
pursuant to an order of a
government or a superior,
whether military or civil-
ian, shall not relieve that
person of criminal respon-
sibility unless all of the
following elements occur:

(a) The person was under
a legal obligation to obey
orders of the government
or the superior in ques-
tion;
(b) The person did not
know that the order was
unlawful; and
(c) The order was not
manifestly unlawful.

Orders to commit geno-
cide or other crimes
against humanity are
manifestly unlawful.

Protection of Victims
and Witnesses. - In ad-
dition to existing provi-
sions in Philippine law for
the protection of victims
and witnesses, the follow-
ing measures shall be un-
dertaken:

(a) The Philippine court
shall take appropriate
measures to protect the
safety, physical and phys-
iological well-being, digni-
ty and privacy of victims
and witnesses. In so do-
ing, the court shall have
regard of all relevant fac-
tors, including age, gen-
der and health, and the
nature of the crime, in
particular, but not limited
to, where the crime in-
volves sexual or gender
violence or violence
against children. The
VOLUME III, ISSUE No. 1 Page 10

prosecutor shall take such
measures particularly dur-
ing the investigation and
prosecution of such
crimes. These measures
shall not be prejudicial to
or inconsistent with the
rights of the accused and
to a fair and impartial tri-
al;
(b) As an exception to the
general principle of public
hearings, the court may,
to protect the victims and
witnesses or an accused,
conduct any part of the
proceedings in camera or
allow the presentation of
evidence by electronic or
other special means. In
particular, such measures
shall be implemented in
the case of the victim of
sexual violence or a child
who is a victim or is a
witness, unless otherwise
ordered by the court,
having regard to all the
circumstances, particular-
ly the views of the victim
or witness;
(c) Where the personal
interests of the victims
are affected, the court
shall permit their views
and concerns to be pre-
sented and considered at
stages of the proceedings
determined to be appro-
priate by the court in
manner which is not prej-
udicial to or inconsistent
with the rights of the ac-
cused and a fair and im-
partial trial. Such views
and concerns may be pre-
sented by the legal repre-
sentatives of the victims
where the court considers
it appropriate in accord-
ance with the established
rules of procedure and
evidence; and
(d) Where the disclosure
of evidence or information
pursuant to this Act may
lead to the grave endan-
germent of the security of
a witness for his/her fami-
ly, the prosecution may,
for the purposes of any
proceedings conducted
prior to the commence-
ment of the trial, withhold
such evidence or infor-
mation and instead sub-
mit a summary thereof.
Such measures shall be
exercised in a manner
which is not prejudicial to
or inconsistent with the
rights of the accused and
to a fair and impartial tri-
al.


Jurisdiction.- The State
shall exercise jurisdiction
over persons, whether
military or civilian, sus-
pected or accused of a
crime defined and penal-
ized in this Act, regardless
of where the crime is
committed, provided, any
one of the following con-
ditions is met:

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

In the interest of justice,
the relevant Philippine
authorities may dispense
with the investigation or
prosecution of a crime
punishable under this Act
if another court or inter-
national tribunal is al-
ready conducting the in-
vestigation or undertaking
the prosecution of such
crime. Instead, the au-
thorities may surrender or
extradite suspected or
accused persons in the
Philippines to the appro-
priate international court,
if any, or to another State
pursuant to the applicable
extradition laws and trea-
ties.
No criminal proceedings
shall be initiated against
foreign nationals suspect-
ed or accused of having
committed the crimes de-
fined and penalized in this
Act if they have been
tried by a competent
court outside the Philip-
pines in respect of the
same offense and acquit-
ted, or having been con-
victed, already served
their sentence.


Philippine Court, Prose-
cutors and Investiga-
tors. - The Regional Trial
Court of the Philippines
shall have original and
exclusive jurisdiction over
the crimes punishable
under this Act. Their judg-
ments may be appealed
or elevated to the Court
of Appeals and to the Su-
preme Court as provided
by law.

The Supreme Court shall
designate special courts
to try cases involving
crimes punishable under
this Act. For these cases,
the Commission on Hu-
man Rights, the Depart-
ment of Justice, the Phil-
ippine National Police or
other concerned law en-
forcement agencies shall
designate prosecutors or
investigators as the case
may be.

The State shall ensure
that judges, prosecutors
and investigators, espe-
cially those designated for
purposes of this Act, re-
ceive effective training in
human rights, Interna-
tional Humanitarian Law
and International Criminal
Law.


AN ACT PROVIDING
Page 11
L C A LINES

FOR THE LEGITIMA-
TION OF CHILDREN
BORN TO PARENTS BE-
LOW MARRYING AGE,
AMENDING FOR THE
PURPOSE THE FAMILY
CODE OF THE PHILIP-
PINES, AS AMENDED

Article 177 of Executive
Order No. 209, otherwise
known as the "Family
Code of the Philippines",
as amended, is hereby
further amended to read
as follows:

"Art. 177. Children con-
ceived and born outside
of wedlock of parents
who, at the time of con-
ception of the former,
were not disqualified by
any impediment to marry
each other, or were so
disqualified only because
either or both of them
were below eighteen (18)
years of age, may be le-
gitimated."

"Art. 178. Legitimation
shall take place by a sub-
sequent valid marriage
between parents. The an-
nulment of a voidable
marriage shall not affect
the legitimation."

Implementing Rules
The civil Registrar General
shall, in consultation with
the chairpersons of the
Committee on Revision of
Laws of the House of Rep-
resentatives and the
Committee on Youth,
Women and Family Rela-
tions of the Senate, the
Council for the Welfare of
Children, the Department
of Justice (DOJ), the De-
partment of Foreign Af-
fairs (DFA), the office of
the Supreme Court Ad-
ministrator, the Philippine
Association of Civil Regis-
trars (PACR) and the UP
Law Center, issue the
necessary rules/
regulations for the effec-
tive implementation of
this Act not later than one
(1) month from its effec-
tivity.


RA 9858
LATEST JURISPRUDENCE
PEOPLE OF THE PHIL-
IPPINES
vs.
MARLON BARSAGA
ABELLA
G.R. No. 177295
January 6, 2010



FACTS: That sometime
on December 1999, at
Barangay San Vicente,
Camarines Sur, accused
Marlon Abella (Abella),
while armed with
Balisong and under the
influence of liquor, en-
tered the house of com-
plainant AAA and then
and there had sexual in-
tercourse with her, a
woman of feeble mind,
against her will. Conceal-
ing the said incident to
her parents, after several
months, it was confirmed
that AAA was pregnant.
Consequently she gave
birth to a baby girl.



ISSUES: (1) Whether or
not the trial court gravely
erred in convicting Abella
of the crime charged alt-
hough his actual partici-
pation in the alleged act
was not proven with cer-
tainty;
(2) Whether or not Abella
should be convicted for
qualified rape.


RULING: The trial court
did not err in convicting
Abella of the crime
charged although his ac-
tual participation in the
alleged act was not prov-
en with certainty.

Article 266-A of the Re-
vised Penal Code provides
that the crime of rape is
committed by a man hav-
ing carnal knowledge of a
woman under any of the
following circumstances:
(1) through force, threat
or intimidation; (2) when
the offended party is de-
prived of reason or other-
wise unconscious; (3) by
means of fraudulent
machination or grave
abuse of authority; and
(4) when the offended
party is under 12 years of
age or is demented, even
though none of the cir-
cumstances mentioned
above be present.

The prosecution has es-
tablished beyond reasona-
ble doubt that the Abella
had carnal knowledge of
AAA, a demented person,
through force, threat or
intimidation. AAA was
psychiatrically evaluated
as an adult woman with
the mental age of a 7 to 8
-year old child and that
she gave birth to a child
despite her mental inabil-
ity to give her consent to
a sexual relationship.
These facts support the
allegation of sexual
abuse. AAA also identi-
fied without uncertainty
Abella as her attacker and
related distinctly that he
forcibly laid her down,
held her at knifepoint,
and sexually abused her.


By well-entrenched juris-
prudence, the issue of
credibility of witnesses is
a question best ad-
dressed to the province of
the trial court because of
its unique position of hav-
ing observed that elusive
and incommunicable evi-
dence of the witnesses'
deportment on the stand
while testifying which op-
portunity is denied to the
appellate courts and
absent any substantial
reason which would justi-
fy the reversal of the trial
court's assessments and
conclusions, the reviewing
court is generally bound
by the former's findings,
particularly when no sig-
nificant facts and circum-
stances are shown to
Page 12 VOLUME III, ISSUE No. 1

have been overlooked or
disregarded which when
considered would have
affected the outcome of
the case.

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

The criminal information
failed to allege the quali-
fying circumstance that
Abella knew of the mental
disability of AAA, thus, his
conviction of statutory or
simple rape committed
with the use of a deadly
weapon, instead of quali-
fied rape, is in order.



MATEO R. NOLLEN, JR.
vs.
COMMISSION ON ELEC-
TIONS and
SUSANA M. CABALLES
G.R. No. 187635
January 11, 2009



FACTS: Susana M. Ca-
balles (Caballes) and
Mateo R. Nollen, Jr.
(Nollen) were candidates
for punong barangay in
the October 2007 baran-
gay elections. Having
garnered 456 votes as
against the 448 votes Ca-
balles obtained, Nollen
was declared as the
punong barangay-elect.

Dissatisfied with the re-
sult, Caballes instituted
an election protest with
the Municipal Trial Court
(MTC) in Quezon.

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

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

The First Division of the
COMELEC dismissed Nol-
lens appeal for his failure
to pay the appeal fee of P
3,000.

Nollen moved for recon-
sideration.

The COMELEC En Banc
denied Nollens motion for
reconsideration.

ISSUE: Whether or not
Nollens petition be grant-
ed.

RULING: Nollens petition
should be granted.

Payment of appeal fees in
appealed election protest
cases is now separately
required by the Rules of
Court and Sec. 3, Rule 40
of the COMELEC Rules of
Procedure, as amended
by Resolution No. 02-
0130, Series of 2002, a
situation not obtaining
previously. The Court,
thus, deems it right to put
things in proper perspec-
tive.

A.M. No. 07-4-15-SC pro-
vides for the Rules of
Procedure in Election Con-
tests Before the Courts
Involving Elective Munici-
pal and Barangay Offi-
cials. Among other
things, it required the
payment of a PhP 1,000
appeal fee upon the filing
of a notice of appeal.
Secs. 8 and 9 of A.M. No.
07-4-15-SC provide:

SEC. 8. Appeal.An
aggrieved party may
appeal the decision
to the [COMELEC]
within five (5) days
after promulgation,
by filing a notice of
appeal with the court
that rendered the
decision x x x.

SEC. 9. Appeal fee.
The appellant in an
election contest shall
pay to the court that
rendered the decision
an appeal fee of One
Thousand Pesos (PhP
1,000), simultane-
ously with the filing
of the notice of ap-
peal.

In a bid to untangle the
confusion in the imple-
mentation of its procedur-
al rules engendered by
the requirement of appeal
fees separately assessed
under the Rules of Court
and its Rules of Proce-
dures, the COMELEC is-
sued on July 15, 2008
Resolution No. 8486,
providing as follows:


L C A LINES
Page 13


VOLUME III, ISSUE No. 1 Page 14
That if the appellant
had already paid the
amount of PhP 1,000
before the Regional
Trial Court, x x x
[MTC] x x x within
the five-day period,
pursuant to Section
9, Rule 14 of the
Rules of Procedure on
Election Contests Be-
fore the Court Involv-
ing Elective Municipal
and Barangay Offi-
cials (Supreme Court
Administrative Order
No. 07-4-15) and his
Appeal is given due
course by the Court,
said appellant is re-
quired to pay the
COMELEC appeal fee
of P3,200.00 x x x
within a period of
fifteen (15) days
from the time of filing
of the Notice of Ap-
peal with the lower
court. If no payment
is made within the
prescribed period,
the appeal shall be
dismissed pursuant
to Section 9(a) of
Rule 22 of the COME-
LEC Rules of Proce-
dure.

SEC. 9 Grounds for
Dismissal of Appeal.
The appeal may be
dismissed x x x (a)
for failure to pay the
correct appeal fee x x
x.

2. That if the appel-
lant failed to pay the
PhP 1,000-appeal fee
with the lower court
within the five-day
period as prescribed
by the Supreme
Court New Rules of
Procedure, but the
case was nonetheless
elevated to the Com-
mission, the appeal
shall be dismissed
outright. x x x
(Emphasis added.)

Since Nollen paid the ap-
peal fee of PhP 1,000 sim-
ultaneously with his filing
of his notice of appeal,
the appeal is considered
perfected pursuant to
COMELEC Resolution No.
8654. Again, Nollens
failure to pay the remain-
ing PhP 3,200 within the
prescribed period cannot
be taken against him,
since the COMELEC failed
to notify him regarding
the additional appeal fee,
as provided by Resolution
No. 8654. Although Nol-
len, following superseded
jurisprudence, failed to
pay the filing fee on time,
he nonetheless voluntarily
paid the remaining PhP
3,200 appeal fee. He re-
mitted the amount of
P3,200, which, applying
extant rules and prevail-
ing jurisprudence, cannot
be considered as having
been belatedly paid.
Hence, his petition should
be given due course.



WELFREDO CENEZE
vs.
FELICIANA RAMOS
G.R. No. 172287
January 15, 2010


FACTS: Welfredo Ceneze
(Ceneze) alleged that in
1981, Julian Ceneze Sr.
(Ceneze Sr.), Cenezes
father, transferred his
tenurial rights over the
landholding to him with
the consent and approval
of Feliciana Ramos
(Ramos) and that, since
then, Ceneze had been in
actual and peaceful pos-
session of the landholding
until Ramos forcibly en-
tered and cultivated the
land for the purpose of
dispossessing Ceneze of
his right as tenant.

The Provincial Adjudicator
rendered a decision in
favor of Ceneze.

The Department of Agrari-
an Reform Adjudication
Board (DARAB) affirmed
the decision of the Provin-
cial Adjudicator.

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

ISSUE: Whether or not
there is a tenancy rela-
tionship between Ramos
and Ceneze.

RULING: There is no
tenancy relationship be-
tween Ramos and Ceneze.
Ceneze failed to establish
the existence of a tenancy
relationship between him
and Ramos. To prove a
tenancy relationship, the
requisite quantum of evi-
dence is substantial evi-
dence, or such relevant
evidence as a reasonable
mind might accept as ad-
equate to support a con-
clusion. The Certification
of the BARC Chairman
and the affidavits of
Ceneze, Sr. and of the
tenants of the adjacent
landholdings certainly do
not suffice. By them-
selves, they do not show
that the elements of con-
sent of the landowner and
of sharing of harvests are
present.

To establish consent,
Ceneze presented the Af-
fidavit executed by
Ceneze, Sr. However, the
affidavit which was not
notarized cannot be giv-
en credence considering
that it was not authenti-
cated. It is self-serving
and unreliable. There
should have been other
corroborative evidence
showing that Ramos con-
sented to and approved of
the transfer of tenurial
rights to Ceneze.
A tenancy relationship
cannot be pre-
sumed. There must be
evidence to prove the
presence of all its indis-
pensable elements, wit:
(1) the parties are the
landowner and the ten-
ant; (2) the subject is
agricultural land; (3)
there is consent by the
landowner; (4) the pur-
pose is agricultural pro-
duction; (5) there is per-
sonal cultivation; and (6)
there is sharing of the
harvest. The absence of
one element does not
make an occupant of a
parcel of land, its cultiva-
tor or planter, a de jure
tenant.




counsel. In 2002 the NMP
completed the revision of
the Qualification Standard
(QS) for its staff.

In 2003 the Human Re-
sources Management Sec-
tion of NMP wrote to Mac-
eda, advising him that the
school would be putting
him under contractual
employment from January
2003 or until such time as
the Civil Service Commis-
sion (CSC) shall have al-
ready approved the NMP
Maritime Training Revised
Qualification Standard.

On March 2003 the NMP
Executive Director, Noriel
Devanadera
(Devanadera), wrote Mac-
eda, informing him that
his temporary appoint-
ment as Professor I was
being renewed effective
on April 2003 and that the
succeeding renewal of his
appointment would be
subject to his meeting the
requirements of the posi-
tion.

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

In 2001 the NMP advised
all employees occupying
next-in-rank positions to
the Deputy Executive Di-
rector (DED) III to submit
their updated Personal
Data Sheets (PDS) for
evaluation as candidates
to that position. Maceda
belatedly submitted his
updated PDS for evalua-
tion.

On December 2003, the
NMP OIC wrote Maceda,
informing him that his
appointment as Professor
I would be renewed on
contractual status effec-
tive from January 2004.
Maceda agreed and
signed a contract of em-
ployment on January
2004. On the same date,
however, Maceda filed a
complaint with the CSC
regarding his demotion in
employment status.

On June 2004 the NMP
OIC informed Maceda
that, on instructions from
Devanadera, he was not
to report for work any-
more on the following
day. On July 2004, how-
ever, Devanadera asked
Maceda to be a guest lec-
turer in Maritime Law,
thus acknowledging the
need for his services and
his expertise on the sub-
ject.

Maceda charged Deva-
nadera and NMP before
the Department of Labor
and Employment (DOLE)
of oppression leading to
his illegal termination.
The DOLE Secretary dis-
missed his complaint.

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

The CA rendered a deci-
sion, granting the petition
of Maceda.

ISSUE: Whether or not
the NMP illegally termi-
nated Maceda from em-
ployment as professor.

RULING: NMP did not
illegally terminate Maceda
from employment as pro-
fessor.

The NMP ignored Mace-
das solid work, expertise,
and experience when it
said that he was not qual-
ified to become a perma-
nent professor. But Mac-
edas so-called accom-
plishments cannot count
for much where, as in this
case, they do not in fact
meet the uniform stand-
ards set by the school for
its permanent professors.
The power to appoint
rests essentially on free
choice. The appointing
authority has the right to
decide who best fits the
job from among those
who meet the minimum
requirements for it. As an
outsider, quite remote
from the day-to-day prob-
lems of a government
agency such as NMP, no
court of law can presume
to have the wisdom need-
ed to make a better judg-
ment respecting staff ap-
pointments.
Under the relevant NMP
QS then in force, a Pro-
fessor I, who was a Ma-
rine Merchant Officer with
a rank of a 3
rd
Mate Of-
ficer, must possess a two-
year sea experience (on
license) and three years
of teaching experience.
Maceda had sufficient
teaching experience but
he did not have the re-

L C A LINES
Page 15
DEPARTMENT OF LA-
BOR
AND EMPLOYMENT
(DOLE)
and NATIONAL MARI-
TIME
POLYTECHNIC (NMP),
vs.
RUBEN Y. MACEDA
G.R. No. 185112
January 18, 2010

FACTS: On June 1989
Ruben Y. Maceda
(Maceda), a deck marine
officer, joined the Nation-
al Maritime Polytechnic
(NMP), a government
school, with a permanent
appointment as Instructor
I. He rose to the perma-
nent positions of Assistant
Professor I and later As-
sociate Professor I. He
studied law in the mean-
time and passed the bar
in 1996. He was later
designated as Officer-in-
Charge (OIC) of the Mari-
time Training Division and
as NMPs legal counsel.

In 1998, the NMP again
promoted Maceda to the
rank of Professor I but
this time under a mere
temporary appointment.
In 1999 the International
Maritime Law sponsored
his studies and he fin-
ished his masters degree
in 2000. He later devel-
oped a module in mari-
time law for Marine Offic-
ers of the NMP and start-
ed teaching the subject in
May 2004.
Yearly, from January
2000 to January 2003,
the NMP renewed Mace-
das temporary appoint-
ment as Professor I. In
2001 he resigned from his
position as NMP legal


VOLUME III, ISSUE No. 1 Page 16
quired shipboard experi-
ence. In fact, he did not
board any vessel as a li-
censed 3
rd
Mate Officer.

The records show that,
despite the repeated ef-
forts of the NMP Human
Resource Management
Section to get him on
board, Maceda still did not
bother to complete the
required shipboard expe-
rience. Because of this,
the NMP could only give
him temporary appoint-
ment that did not provide
any security of tenure.
Such appointment is of
course terminable at the
pleasure of the appointing
power with or without a
cause.
No demotion took place
since a contractual ap-
pointment is of the same
nature as a temporary
appointment. Thus, when
the NMP did not further
renew Macedas contrac-
tual appointment, the
same cannot be regarded
as a dismissal but an ex-
piration of his term.










JESUS M. CALO
vs.
COMMISSION ON ELEC-
TIONS
and RAMON
MONCHING RMC M.
CALO
G.R. No. 185222
January 19, 2010

FACTS: Ramon M. Calo
(Ramon) was proclaimed
winner in the May 2007
mayoralty race in the
Province of Agusan del
Sur. His opponent, Jesus
M. Calo (Jesus), is his
brother, whom he beat by
278 votes. Jesus filed an
election protest in the
Regional Trial Court (RTC)
questioning the election
results.
The RTC issued its deci-
sion on the protest finding
Jesus to have received
the majority votes and
declaring him the duly
elected mayor.
The RTC issued its special
order granting Jesus mo-
tion for the issuance of a
writ of execution pending
appeal. Ramon sought
reconsideration of this
special orderhowever,
on the same date, the
RTC ordered the transmit-
tal of the records to the
COMELEC.
Before the RTC could act
on the motion for recon-
sideration filed by Ramon,
he forthwith filed a peti-
tion for certiorari and pro-
hibition with the Commis-
sion on Elections
(COMELEC) raising as
ground the grave abuse of
discretion committed by
the RTC.
The COMELEC First Divi-
sion issued its resolution
granting the petition set-
ting aside the RTC special
order directing Ramon to
continue as the municipal
mayor of the Municipality
of Carmen. Jesus filed a
motion for reconsidera-
tion, which was denied by
the COMELEC En Banc.
ISSUE: Whether or not
the RTC exercised its dis-
cretionary power to grant
execution pending appeal
per special order with bias
or capricious and whimsi-
cal arbitrariness.

RULING: The RTC, in
exercising its discretion-
ary power to grant execu-
tion pending appeal per
special order, was not
tainted with any bias or
capricious and whimsical
arbitrariness.
Section 11, Rule 14 of
A.M. No. 07-4-15-SC
sets the standards in
the grant or denial of a
motion for execution
pending appeal in elec-
tion contests involving
elective municipal and
barangay officials, to wit

SEC. 11. Execution
pending appeal. On
motion of the prevail-
ing party with notice
to the adverse party,
the court, while still
in possession of the
original records, may,
at its discretion, or-
der the execution of
the decision in an
election contest be-
fore the expiration of
the period to appeal,
subject to the follow-
ing rules:

(a) There must be a
motion by the prevail-
ing party with three-
day notice to the ad-
verse party. Execution
pending appeal shall
not issue without prior
notice and hearing.
There must be good
reasons for the execu-
tion pending appeal.
The court, in a special
order, must state the
good or special rea-
sons justifying the ex-
ecution pending ap-
peal. Such reasons

by the prevailing party
shall contain a three-day
notice to the adverse par-
ty and execution pending
appeal shall not issue
without prior notice and
hearing.
The COMELEC should not
have annulled the RTC
special order. The COME-
LEC committed an error in
annulling and setting it
aside.
The COMELEC should
have accorded respect
and weight to the RTCs
decision proclaiming Jesus
as winner. Note that
aside from the evidence
presented by the parties
during the election con-
test and the expert testi-
mony of the witnesses
from the National Bureau
of Investigation, the RTC
made its own assessment
and findings on the con-
tested ballots.


L C A LINES
Page 17
must:
1. constitute supe-
rior circumstances
demanding urgency
that will outweigh
the injury or dam-
age should the los-
ing party secure a
reversal of the
judgment on ap-
peal; and
2. be manifest, in
the decision sought
to be executed,
that the defeat of
the protestee or
the victory of the
protestant has
been clearly estab-
lished.
(b) If the court
grants execution
pending appeal, an
aggrieved party shall
have twenty working
days from notice of
the special order
within which to se-
cure a restraining
order or status quo
order from the Su-
preme Court or the
Commission on Elec-
tions. The corre-
sponding writ of exe-
cution shall issue af-
ter twenty days, if no
restraining order or
status quo order is
issued. During such
period, the writ of
execution pending
appeal shall be
stayed.
The relevant rule provides
that a motion for execu-
tion pending appeal filed

VOLUME III, ISSUE No. 1 Page 18
Volume III Issue 1
January 2010
LAGUNDI-CARONAN AND ASSOC.
J
L
s
C
O
R
N
E
R




EAGER TO IMPRESS THE BOSS

Jeorge, a young executive was leaving the office late one evening
when he found the CEO standing in front of the shredder with a piece
of paper in his hand.

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

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

Excellent! Excellent Jeorge! Thank you for your help, I just needed
one copy of it
LAGUNDI-CARONAN AND ASSOCIATES
Rhem Square Bldg.
Carig Sur
Tuguegarao City