1.      When is the crime of kidnapping and serious illegal detention committed?

The crime is committed when a private individual, not any of the parents of the victim, unlawfully kidnaps or detains another, or in any manner depriving the latter of his liberty, and that any of the following circumstances is present:

• That the kidnapping or detention lasts for more than 3 days; or
• That it is committed simulating public authority; or
• That any serious physical injuries are inflicted upon the victim or threats to kill him are made; or
• That the victim is a minor, female or a public officer.

2.      What if there is kidnapping or detention but none of the circumstances enumerated above is present, what crime is committed?

If any private individual kidnaps or detains another, or in any other manner deprive him of his liberty, but without any of the four circumstances mentioned above, the crime is slight illegal detention. However, if the kidnapping or detention was committed for the purpose of extorting ransom, even without actual demand for ransom, then the crime will still be kidnapping and serious illegal detention.

On the other hand, if the purpose of the locking up or detaining the victim is to deliver him to the proper authorities, the offense committed is only unlawful arrest.

3.      What if the offender is a public officer, what crime is committed?

The crime will be arbitrary detention. It is still essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved; just as the intent of the accused to deprive the victim of his liberty must also be established. But the public officer must have a duty under the law to detain a person, such as a policeman. If he has no such duty, like a clerk in the government office, and he detains a person he is liable of kidnapping and serious illegal detention.

4.      Is leaving a 5-year old child in the house of another, where he has freedom to move around but not the freedom to leave it at will constitute illegal detention?

Yes. Illegal detention may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty. Because of his tender age and assuming he did not know the way back home, he was then and there in a way deprived of his liberty. It is like putting him in a prison or in an asylum where he may have freedom of locomotion but not the freedom to leave it at will.

5.      What if a 20-year old girl was left in a house and was ordered not to go out or peep out of the window, does this also constitute the crime of illegal detention?

No. if the girl had freedom to leave the premises where she was confined, the crime of illegal detention cannot rise because she was not deprived of her liberty. It is essential in the crime of illegal detention that there be an actual confinement or restriction of the person of the offended party.

However, if the doors and windows of the house are locked up, then the crime is kidnapping and serious illegal detention.

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Last Tuesday, December 20, 2011, at 3pm in the afternoon, an outreach program, spearheaded by Dean  Mikhail Lee Maxino of the SU College of Law, was held at Villareal Hall, Silliman University. Children selected by the Dumaguete City DSWD coming from Barangays Tinago and Taclobo were this year’s recipients of the outreach program; most of them were not only indigent but also victims of the devastating floods that hit the city few days ago. The event aimed not only to give aid and simple gifts but also hoped to bring joy to the children and uplift their spirit in this yuletide season especially after typhoon Sendong.

The activities and games  gave the children the chance to participate, enjoy, and pick the prize of their choice from the various toys donated, whether they win or lose.  After the games, children were treated to sumptuous cheeseburgers and refreshments generously donated by McDonalds Dumaguete, owned and operated by Mr. Nilo Tam, and managed by Rhodora Estolloso Baol.  The children were also given gifts of food, goods, toys and clothing which they can share with their families.

This year’s event was sponsored by the Salonga Center, the SU College of Law, TAO Corporation of Makati, City, Dumaguete City McDonalds, Dumaguete City DSWD, and the dynamic volunteers and staff of the Salonga Center and the SU College of Law led by Atty. Myrish Cadapan-Antonio, Andrea Alviola, Ingrid Tagal, Rocky Tinagan, Norman Herrera, Tara Real, Gay Cabusao, Gracelyn Bellingan, Bryan Magcanta, and Cris and Anne Ayerst (of SUHS 1979).

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This legal clinic was part of the Medical Mission 2011 in consonance to the H.E.A.R.T (Health, Agriculture, Education, Road and Trade & Tourism) Program spearheaded by 1^st District Congresswoman Jocelyn Limkaichong and her Board Members. The participation of the Center is in relation to a Memorandum of Agreement between the good Congresswoman and Silliman University for a partnership on the delivery of legal services in the form of consultations and legal opinions to her constituents.

Last November 19, 2011, Salonga Center volunteers along with the center’s director, Atty. Myrish Cadapan-Antonio went to Bgry. McKinley Guinhulngan, Negros Oriental. Problems regarding procedural due process violations were raised by some private individuals in the area. Questions about land titling, and powers of the prosecution by the PNP and AFP were also pointed out in the legal clinic.

In the same manner, last November 23, the College of Law dean, Atty. M Mikhail Lee Maxino together with another batch of volunteers visited Brgy, Pinocawan Tayasan, Negros Oriental and conducted another legal clinic. Issues on land titling, cadastral surveying, property and partitions were again raised mostly by the farmer-residents of the barangay.

More recently, last December 2, 2011, Salonga Center volunteers participated in another legal clinic in Brgy, Kabulihan, Vallhermoso. As in the two previous legal clinics, concerns on land cadastral land surveying and registration were inquired upon by the residents.

As a response to these problems raised by the farmers, Congresswoman Limkaichong charged the Salonga Center legal team to draft a proposal and make recommendations on how to make cadastral surveying and land registration measures expedient and practical especially to far-flung barangays in the mountainous areas of Negros Oriental.

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 Article 74 of the Family Code enumerates the property relations between husband and wife as follows: (1) by marriage settlements executed before the marriage; (2) by the provisions of the Family Code; and (3) by the local customs.

2.       What is marriage settlement?

It is contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence of the marriage. It may be a regime of absolute community, conjugal partnership of gains, complete separation of property or any other regime. In the absence of a marriage settlement or when the regime agreed upon is void, the system of absolute community of property as established in the Family Code (Art 75, FC)

3.      What is “conjugal partnership of gains”?

It is that formed by a husband and his wife whereby they place in common funds the fruits of the separate property and the income from their work and industry, the same to be divided equally (as a general rule) upon the dissolution of the marriage.

4.      What is the “system of separation of property”?

It is that matrimonial property regime agreed upon in the marriage settlement by the future spouses whereby each spouse shall own, dispose of, possess, administer, and enjoy his or her own separate estate and earnings without the consent of the other, with each spouse proportionately bearing the family expenses.

5.      What are the requisites of a marriage settlement?

a)              It must be made before the celebration of the marriage;

b)              Must contain provisions not contrary to law, good morals, good customs, public order, and public policy, or against the dignity of either spouse;

c)               Must be in writing but does not require that it should be in public instrument;

Any modification in the marriage settlements may be deemed valid but it should be made before the celebration of the marriage. (Contributor, Ihra Faith Magno)

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It is “a special contract of permanent union between man and woman in accordance with the law for the establishment of conjugal and family life. And, it is the foundation of the family and an inviolable social institution (sic)” (Sec. 1, Family Code of 1987).

Does the law allow same-sex marriage?

No. The law is clear in its intent, Section 1 of the Family Code states that marriage is only between a man and a woman.

What is the purpose of marriage?

It is the establishment of conjugal and family life. Under the present Constitution, “marriage is an inviolable social institution, is the foundation of the family and shall be protected by the State” (Article 15, Sec. 2 of the 1987 Phil. Constitution).

What is meant by “conjugal”?

According to the legal dictionary conjugal means, the rights belong to husband and wife. Anything which comes into the marriage belongs equally to husband and wife.

How to distinguish Marriage from Ordinary contracts?

In ordinary contracts; 1) the agreements depend on the terms and conditions expressly stated therein by contracting parties but not to the extent that such conditions are against the law, public policy, public order, morals, or good customs, 2) the age requirement upon entering to ordinary contracts is the age of majority and, 3) the contract may end through express provision of the law, through expiration of the terms for which the contracts agreed, through the fulfillment of the purpose for which the contract was entered into, or through mutual agreement of the parties concerned. In marriage; 1) the nature, consequences and incidents are governed by law, 2) the age requirement of marriage varies and, 3) marriage may end only through death or annulment for legal causes.

What are the requisites of marriage?

Marriage has two main requisites, the essential and formal requisites. Essential requisites are the “legal capacity of the contracting parties who must be a male and a female and the consent is freely given in the presence of the solemnizing officer”(Sec. 2, Family Code of 1987). And the formal requisites are the “authority of the solemnizing officer, a valid marriage license and a marriage ceremony which the contracting parties, in their personal declaration before the solemnizing officer that they take each other as husband and wife, in the presence of at least two witnesses of legal age”(Sec. 3, Family Code of 1987).

What is meant by “legal capacity” and “consent freely given”?

Legal capacity means that both parties must be in the legal age or parents consent is present, either party is legally single and not related by either affinity (law) or consanguinity (blood). And consent freely given does not refer to the parental consent but the consent of the contracting party that they take each other as husband and wife. (Contributor, Val Magno)

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Yes. The Lupong Tagapamayapa is composed of the Punong Barangay as lupon chairman and ten (10) to twenty (20) members who are residents of the barangay in good standing appointed by the Lupon Chairman. The barangay secretary shall concurrently serve as lupon secretary.

Meanwhile, the Pangkat ng Tagapagkasundo is composed of three members chosen from the list of Lupon members. The Pangkat is constituted for a particular case and are chosen by the parties themselves. If they cannot agree as to who will constitute the Pangkat, the members will be chosen by lots drawn by the Lupon Chairman. After being constituted, the Pangkat shall elect from among themselves, the Pangkat Chairman and Secretary. It should be noted that this time, the Pangkat Secretary is not necessarily the Barangay Secretary.

May an agent, representative, or lawyer appear on my behalf in the proceedings?

No. The parties must appear in person and without the assistance of counsel or representative, except for minors or incompetents who may be assisted by their next of kin who are not lawyers.

Where the case for barangay settlement may be filed?

a)       Disputes involving residents of the same barangay shall be filed in said barangay;

b)      Residents of different barangays within the same city/municipality – in the barangay where the respondents or any of the respondents resides that the instance of the complainant

c)      Disputes involving real property or any interest therein – in the barangay where the property or the larger portion thereof is located

d)      Disputes arising at the workplace between co-workers or schools where parties are enrolled – in the barangay where such workplace or school/institution is located

What is the procedure for settlement of cases falling under the barangay settlement system?

Any party who has a complaint or cause of action against another individual involving a matter within the authority of the Lupon may complain orally or in writing to the Barangay Chairman. The complaining party should also pay the appropriate filing fee. Upon receipt of the complaint, the Barangay Chairman shall within the next working day summon the respondents with notice to the complainants for them to appear before him for a mediation of their conflicting interests. If meditation fails, within 15 days from the first meeting, the Pangkat should be constituted.

Within three days from its formation, the Pangkat shall convene to hear both parties and their witnesses, simplify issues, and explore all possibilities of amicable settlement. The pangkat should arrive at a settlement of the dispute within 15 days from the day it convenes. This period is extendible for another 15 days in meritorious cases, at the discretion of the pangkat.

What is the form of the settlement?

All amicable settlement should be in writing, in a language or dialect known to the parties, signed by them, and attested to by the lupon chairman as the case may be.

Can a party repudiate the settlement?

Yes. A party to the dispute may within ten days from the date of settlement, repudiate the same by filing with the Lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation.

What happens if the parties fail to arrive at an amicable settlement or one of the parties repudiates the settlement?

A certificate to file the action in court may be issued by the Lupon or Pangkat Secretary duly attested to by the Lupon or Pangkat Chairman as the case may be. (Donna Amethyst Bernardo, Contributor)

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The seminar entitled “Sulong Barangay” was aimed to increase awareness of barangay tanod of their duties and responsibilities as peace keeping officers of the barangay specially with regards to eliminating drug related cases in their respective locality.

The seminar commenced with a warm welcome given by Atty. Myrish Cadapan-Antonio, Director of the Salonga Center, and followed by a briefer on the duties and responsibilities of a barangay tanod shared by Gracelyn Bellingan, a sophomore law student of the Public Corporation class.

The main focus of the seminar was the lecture given by Atty. Jason M. Bandal, a promising lawyer of the Public Attorney’s office and previously a volunteer lawyer of the Salonga Center. His lecture covered Republic Act 9165 (RA 9165), otherwise known as the “Comprehensive Dangerous Drug Act of 2002” and Rules on “Criminal Procedure: Rule 113 (Arrest) and Rule 126 (Search and Seizure)”.

Among those barangays invited were Poblacion 1, Poblacion 2, Piapi, Cadawinonan, Lo-oc and Calindagan, barangays noted with the most number of drug cases in Dumaguete City. Each barangay was well represented, a total of 18 barangay tanod and 14 barangay councilors from the six barangays were present in the said seminar. They all attentively listened to the lectures and actively participated during the open forum. Several questions were raised by the participants, most of which were based on their actual experiences or encounters on apprehending criminals, especially with regards to violators of RA 9165. At the end, participants expressed their gratitude to the group for having them invited to the said seminar. It supplied them with adequate knowledge necessary in the fulfillment of their duties and responsibilities as peace keeping officers of the barangay.

The said seminar would not be that successful without the effort of the sophomore students: spearheaded by April Mae Gaston, leader of Group 1 of the Public Corporation class and Gracelyn Bellingan, head of the Salonga Center Trainings and Seminars Committee; Jan Mark Baguio, Albert Babaylan, Theresa Gail Petilos, Jose Mari Benin and Ernie Gagno.

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The KP Law is a system for the amicable settlement of disputes at the barangay level. It was established to promote the speedy administration of justice and to relieve court dockets and prosecutor’s offices of conciliable case. It is governed by Sections 399 to 422 of  R.A. 7160 or the Local Government Code.

What is the consequence of not bringing the case before the Katarungang Pambarangay before filing the case in court?

Non compliance with the barangay conciliation process when the case falls under the jurisdiction of the Katarungang Pambarangay is a ground for dismissal of the case for non compliance with a condition precedent.

What are the cases which need to be brought before the system of barangay conciliation?

All disputes are subject are to Barangay conciliation except in the following disputes:

[1] Where one party is the government, or any subdivision or instrumentality thereof;

[2] Where one party is a public officer or employee and the dispute relates to the performance of his official functions;

[3] Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

[4] Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents

[5] Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

[6] Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] year or a fine of over five thousand pesos (P5,000.00);

[7] Offenses where there is no private offended party;

[8] Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following:

[a] Criminal cases where accused is under police custody or detention

[b] Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf;

[c] Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and

[d] Actions which may be barred by the Statute of Limitations.
[9] Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

[10] Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) and labor disputes or controversies arising from employer-employee relations. (Contributor, Donna Amethyst Bernardo)

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