What is a Writ of Kalikasan?

 It is a remedy available to a natural or juridical person, entity authorized by law, people’s organizations, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity without involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

What is the basis of the Writ of Kalikasan?

 It rests in Article II, Section 16 on the Declaration of Principles and State Policies of the 1987 Constitution, which states that, “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”.

What is the important feature of this writ?

The magnitude requirement with regards to the destruction or imminent destruction which is sought to be prevented must be present.

What is a Writ of Continuing Mandamus?

It is writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. It is filed by one who is personally aggrieved. (Contributor, Ihra Faith C Magno)

Summary of difference and similarities of Writ of Kalikasan and Writ of Continuing Mandamus

1.What is maritime law?

It is the system of laws which particularly relates to the affairs and business of the sea, to ships, their crews and navigation, and to marine conveyance of persons and property.

2. Who are the persons liable for the injuries sustained in the operation of a vessel?

The shipowner is the person who is primarily liable for damages sustained in the operation of a vessel. The Code of Commerce at times uses the term “naviero” to indicate the person who is liable. The “naviero” has been construed to include the shipowner, ship agent and even the charterer.

3. What is the limited liability rule?

“No vessel, no liability”, expresses in the nutshell the limited liability rule. It means that the shipowner’s or agent’s liability is merely co-extensive with his interest in the vessel such that a total loss thereof results in its extinction. If the ship is totally lost, his liability is extinguished. If the ship or part thereof still exists, he can escape liability by abandoning the vessel, its appurtenances and its freight.

4. Is there any exception to the abovementioned rule?

Yes. The exceptions are the following: (a) where the injury or death to a passenger is due either to the fault of the shipowner, or to the concurring negligence of the shipowner and the captain; (2) where the vessel is insured; and (3) in workmen’s compensation.

5. Who has the burden of proof in order to in voke limited liability doctrine?

The carrier or shipowner has the burden of showing that it exercised extraordinary diligence in the transport of goods it had on board in order to invoke the limited liability doctrine.

6. What is abandonment of the vessel means?

It is an indispensable requirement before the shipowner or ship agent can enjoy the benefits of the limited liability principle. If the carrier does not want to abandon the vessel, then he is still liable even beyond the value of the vessel.

7. What is a charter party?

It is a contract whereby an entire ship, or some principal part of the said ship, is let by the owner thereof to the merchant or other person for a specified time or use for the conveyance of goods, in consideration of the payment of freight.

8. What are the two main categories of charter parties?

These are: (a) The Bareboat or Demise Charter, wherein the shipowner leases to the charterer the whole vessel, transferring to the latter the entire command, possession and consequent control over the vessel’s navigation, including the master and the crew, who thereby become the charterer’s servants, and (b) Contract of Affreightment wherein the vessel is leased to the charterer for affixed period of time.(Contributor, Ihra Faith C Magno)

January 22, 2012

1. What constitutes graft and corrupt practices?

In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.

c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section XIII of this Act.

d) Accepting or having any member of his family accept which has employment in a private enterprise pending official business with him during the pendency thereof or within one year after its termination.

e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undu e advantage in favor of or discriminating against any other interested party.

g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.

i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

2. Is the Court bound by the statement of assets and liabilities filed whether or not there is an unexplained wealth?

In determining whether or not there is an unexplained wealth under RA 1379 (Forfeiture of Illegally Acquired Properties), the court is not bound by the statement of assets and liabilities filed by the respondent. The statute affords only the respondent every opportunity to explain, to the satisfaction of the court, how he had acquired the property in question. However, under Section 7 of RA 3019, the accuracy of entries in statements of assets and liabilities becomes material in criminal and administrative proceedings.

3. Is the proceeding under RA 1379 criminal in nature?

It is not criminal because it does not terminate in the imposition of penalty but merely in the forfeiture of the properties illegally acquired in favor of the State. Ihra Faith C Magno, Contributor

March 11, 2012

What is the concept of continuous trial?

1. It is one where the courts are called upon to conduct the trial with utmost dispatch, with judicial exercise of the court’s power to control the trial to avoid delay and for each party to complete the presentation of evidence with the trial dates assigned to him.

   2. X and Y are accused with an offense. X is the principal, Y is the accessory. May Y tried without being tried?

   Yes. The trial of an accessory can proceed without waiting the result of the separate charge against the principal and accessory which are separate and distinct. As long as the commission of an offense can be duly established by evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal.

   3. What is the rule on the trial of several accused?

   When two or more accused are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the prosecutor or any accused orders separate trials for one or more accused.

   4. When an accused be discharged to become a state witness?

   When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after the prosecution present the evidence and the sworn statement of each proposed witness at a hearing in support of the discharge, the court is satisfied that:

   a. There is an absolute necessity for the testimony of the accused whose discharge is requested;

   b. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused;

   c . The testimony of said accused can be substantially corroborated in its material points;

   d. Said accused does not appear to be the most guilty;

   e. Said accused has not at any time been convicted of any offense involving moral turpitude.

   5. May an accused who has pleaded guilty to an offense still be discharged to become state witness?

   Yes, for as long as he has not yet been sentenced. The discharge of an accused is a matter of discretion.

   6. When may the public be excluded during the trial?

   The court may exclude the public from the courtroom if the evidence to be produced during the trial is such a character as to be offensive to decency or public morals. The court may also, on motion of the accused exclude the public from the trial except the court personnel and the counsel of the parties. (Contributor, Ihra Faith C Magno)

March 04, 2012

1. What is arraignment?

Arraignment is a formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him.

2. What are the purposes for which the offended party may be required to appear at the arraignment?

The private offended party may be required to appear at the arraignment for the purposes of:

• Plea-bargaining;
• Determination of civil liability;
• Other matters requiring his presence.

3. May an accused be arraigned in absentia?

No. The accused must be present at the arraignment and must personally enter his plea.

4. If an accused pleads guilty to a capital offense, what should the court do before rendering the judgment?

The trial court is called upon to conduct a searching question into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of his culpability.

5. What are searching questions?

It means more than informing cursorily the accused that he faces a jail term. It also includes the exact length of imprisonment under the law and the certainty that he will serve at the national penitentiary of a penal colony.

6. May an accused withdraw his plea of guilty?

Yes, it is improvident. At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. In fact, the Supreme Court has oftenly set aside judgments of conviction in capital offense because of the improvidence of plea when such plea is the sole basis of the judgment of condemnatory judgment. The withdrawal, however, is not a matter of strict right.

7. What may the accused do before arraignment if there are defects of the information against him?

Accused may, at or before arraignment, move for a bill of particular to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects and the details desired.

8. X was charged with the crime of homicide. When he was arraigned, he pleaded guilty. He was brought to the witness stand and testified that he killed the victim in self-defense. He was acquitted. Was the acquittal proper?

No. The acquittal is void because the rule is that, one who pleads guilty unconditionally admits his guilt. What the court should have done when he testified that he killed the victim in self-defense was to stop the proceeding and order the re-arraignment of the accused; try and acquit him if the evidence of self-defense can be proven. Without these things being done, the court cannot acquit the accused. (Contributor, Ihra Faith Magno)

February 26, 2012

1. What are the acts punished as alarms and scandal?

   • Discharging any firearm, rocket, firecracker, or other explosive within any town or pubic place, calculated to cause or that which produces alarm or danger.

   • Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquillity.

   • Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements.

   • Causing any disturbance or scandal in public places while intoxicated or otherwise.

   2. Does the discharge of firearm or rocket be particularly done in the town or public place to constitute Alarms and Scandal?

   No. The discharge of firearms, rocket, etc., in one’s garden located in the town is sufficient to come in violation of this provision of law, as long as such act produces alarm or danger.

   3. How is the “discharge of firearm” in alarms and scandal be any different from the “DISCHARGE OF FIREARMS” which is a distinct act punished in article 254 of the same Revised Penal Code?
   
   Under paragraph one, article 155, the discharge of the firearm should not be aimed at a person; otherwise, the offense would fall under article 254, punishing the discharge of firearm.

   4. Is the discharge of firecrackers or rockets during fiestas of festive occasions covered by paragraph 1 of this Article?

   No.

   5. How is the phrase “calculated to cause alarm or danger” construed to qualify an act constituting Alarms and Scandal?

   The phrase “calculated to cause alarm or danger” was taken from the Spanish text which read “queproduzcaalarma o peligro.” Hence, it is the result, not the intent, that counts. The act must produce alarm or danger as a consequence.

   6. What is Charivari?

   The term “charivari” includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tins, horns, etc., designed to annoy or insult.

   7. What is/are the punishment for the acts constituting under article 155 or Alarms and Scandal?

   The penalty of arresto mayor or a fine not exceeding 200.00 pesos is imposed upon any person who commits any act/s which constitutes Alarms and Scandal. (Bryan Magcanta, Contributor)

1. What is robbery?

   Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything.

   When is the unlawful taking deemed consummated?

   As to robbery with violence against or intimidation of persons, the unlawful taking is complete from the moment the offender gains possession of the thing, even if the culprit has had no opportunity to dispose of the same.

   Ex. X saw Y put money into his coat pocket. The next day, X held Y and deprived him of the coat, but finding the money was not there, defendant threw away the coat. X is guilty of robbery.

   As to robbery with force upon things, the thing must be taken out of the building or house to consummate the crime.

   What if X took, without consent of Y, the latter’s watch thinking that it was his and not Y’s, is X liable for robbery?

   No. The taking of personal property belonging to another should not be under the claim of ownership. If X took it openly and avowedly under claim of title proffered in good faith, he is not guilty of robbery even though the claim of ownership is untenable.

   What crime is committed if the robber(s) killed or injured an occupant of the house robbed?

   When by reason or on occasion of robbery, somebody was killed, whether an occupant of the house or one of the robbers, or where several personals are killed, the crime shall be robbery with homicide.

   It must be noted that the intent to take personal property belonging to another with intent to gain must precede the killing, otherwise, two separate crimes of homicide or murder, as the case may be, and theft is committed.

   Ex. X and Y had a serious fight where the latter accidentally killed X. So as not to blame him of the crime of killing X, Y took X’s money and valuable jewelries.

   What distinguishes robbery from theft?

   In theft, the taking of personal property is accomplished without the use of violence against or intimidation of persons or does not enter the house or building through force upon things.

   What if X picked the pocket of Y, and having taken Y’s wallet, X walked away. Y felt that his wallet was gone, he looked around and saw X just a few meters away. Y approached X and asked for his wallet. X threatened Y with bodily harm, boxed the latter and ran away. Is X liable for robbery?

   No. The crime committed is theft because the taking of the wallet of Y by X was already complete when X used violence against and intimidation of B.

   What if X entered the house of Y through an open door and once inside, he removed by force toilet fixtures and carried them away. Is X liable for robbery?
   
   NO. X is only liable for theft in spite of the use of force upon things because the force was not employed to enter the house. The only case where the taking of personal property with force upon things is robbery, even if the culprit did not enter the house or building with force upon things, is when a furniture, chest or other locked or sealed receptacle is broken in the house or building or taken there from and broken outside. . (Ihra Faith C Magno, Contributor)

February 05, 2012

 What constitutes the crime of parricide?

1. The following are the elements of parricide:

   a. That the person is killed.

   b. That the deceased is killed by the accused.

   c. That the deceased is the father, mother or child, whether legitimate or illegitimate, or a legitimate either ascendant or other descendant, or the legitimate spouse, of the accused.

   Relationship of the offender with the victim is the essential element of this crime.

   2. Are parents and children included in the term “ascendants” or “descendants”?

   No. The ascendants and descendants referred to exclude parents and children. The law should read “or any other ascendant or descendant.”

   3. Does the other ascendant or descendant need to be legitimate?

   Yes. Thus for instance, he who kills an illegitimate grandfather or an illegitimate grandson is not guilty of parricide, but of simple homicide or murder, as the case may be.

   4. If a person wanted to kill a stranger but by mistake killed his own father, will it be parricide?

   Yes. He will be held liable, but under Article 49 of the Revised Penal Code providing thereof penalty to be imposed upon the principals when the crime committed is different from that is intended.

   5. What is the best proof of the relationship between the accused and the deceased?

   The best proof of relationship in this case is the marriage certificate. If, however, the oral evidence presented to prove the fact of marriage is not objected to, the said evidence may be considered by the court.

   6. What is the penalty for the crime of parricide?

   Any person who shall be convicted with parricide shall be punished by the penalty of reclusion perpetua to death. (As amended by RA No 7659)

   7.What is the penalty for the crime of parricide through reckless imprudence?

   Parricide through reckless imprudence is punished by arresto mayor in its maximum period to prision correccional in its medium period. If committed through simple imprudence or negligence, the penalty is arresto mayor in its medium and maximum periods.

   8.What is the liability of a stranger cooperating in parricide?

   A stranger who cooperates and takes part in the commission of the crime parricide is not guilty of parricide but only homicide or murder as the case may be. (Ihra Faith C Magno, Contributor)

January 29, 2012

Section 4, Article III (Bill of Rights) of the 1987 Philippine Constitution: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

What do “speech,” “expression,” and “press” include?