Archives for the month of: October, 2010

Caveat:  Not sure if this HB has become law.

 

AN ACT EMPOWERING LOCAL GOVERNMENT UNITS (LGUs) TO MONITOR THE ENFORCEMENT OF LAWS, RULES AND REGULATIONS ON ENVIRONMENTAL PROTECTION AND CONSERVATION OF NATURAL RESOURCES
 


 

Republic of the Philippines

HOUSE OF REPRESENTATIVES

Quezon City

TWELFTH CONGRESS

First Regular Session

HOUSE BILL NO. 234

Introduced by HON. JUAN MIGUEL F. ZUBIRI

EXPLANATORY NOTE

The local Government Code of 1991 was conceived and implemented in order to provide better and faster implementation of service of the government to the grassroots level. Because of the promise that the Code has shown upon its implementation, various mechanisms have been explored to better coordinate the national and local governments and enhance the cooperative interaction between them.

Although a lot of laws dealing with the protection and conservation of our environment and natural resources, its complexities make it impractical for the national government to be the sole role in implementing said laws. With this, a more coordinated and cooperative action from the national and local governments on the enforcement of national laws on environmental protection and conservation of natural resources is needed because poor enforcement of such laws leads to environmental problems primarily affecting the local government. Empowering local governments in enforcing and implementing these laws will make them vigilant thereby reducing and preventing the risks of environmental disasters.

In view of the above, this bill therefore seeks to increase the role of local governments in monitoring the implementation of national laws on environmental protection and conservation of natural resources.

Approval of this bill is earnestly requested.

JUAN MIGUEL F. ZUBIRI

Representative, 3rd District, Bukidnon
Republic of the Philippines

HOUSE OF REPRESENTATIVES

Quezon City

TWELFTH CONGRESS

First Regular Session

HOUSE BILL NO. 234

Introduced by HON. JUAN MIGUEL F. ZUBIRI

AN ACT EMPOWERING LOCAL GOVERNMENT UNITS (LGUs) TO MONITOR THE ENFORCEMENT OF LAWS, RULES AND REGULATIONS ON ENVIRONMENTAL PROTECTION AND CONSERVATION OF NATURAL RESOURCES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Title. This Act shall be known as the “Local Initiative on Environmental Protection and Conservation of Natural Resources Act of 2001”.

Section 2. Declaration of Policy. It shall be the policy of the state to promote more effective coordination between the national and local governments.

Section 3. Objective. The objective of this Act shall be to establish coordination between the national laws on environmental protection and conservation of natural resources.

Section 4. Coverage. This Act shall involve all governments nationwide and shall cover the implementation of all national laws on environmental protection and conservation of natural resources.

Section 5. Inspection. Local government executives, members of the local sanggunian and duly appointed officials of the local governments shall have ready access to the facilities and areas of operations of processing and manufacturing concerns and concessions of forest, mineral and aquatic resources in their areas of jurisdiction for the purpose of inspecting and determining compliance with existing laws, rules and regulations on environmental protection and conservation of natural resources.

Section 6. Notice of Possible Violations. Local governments, through a resolution of their local sanggunian, shall serve formal notice to the DENR upon discovery of possible violations of national laws on environmental protection and conservation of natural resources by processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources.

Section 7. Enforcement. In the event of failure by the DENR to act on the formal notice seven days after it has been served, local governments may, by a majority decision of the local sanggunian, exercise police power, and compel compliance from or impose sanctions on concerned parties, as provided for in the relevant national laws, rules or regulations on environmental protection and conservation of natural resources.

Section 8. Validity of Local Government Action. Local government action on the enforcement of national laws, rules and regulations on environmental protection and conservation of natural resources as provided for in Section 3 above shall remain valid until superseded by a subsequent action by the Department of Environment and Natural Resources (DENR) or the courts of the Philippines.

Section 9. Jurisdiction. For the purpose of implementing the intent and provisions of this Act, the respective jurisdiction of local governments shall be as follows:

1)                  Barangay government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose area of operation is exclusively within the territorial jurisdiction of the barangay.

2)                  Municipal government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose are a of operation covers more than one barangay but exclusively within the territorial jurisdiction of the municipality.

3)                  Provincial government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose are a of operation covers more than one municipality but exclusively within the territorial jurisdiction of the province.

Section 10. Section 10. Implementation. The Department of Environment and Natural Resources and the Department of Interior and Local Government (DILG), in consultation with the League of Provinces and cities, League of Municipalities and the Liga ng mga Barangay shall formulate and enforce the rules and regulations necessary for the implementation of the intent and provisions of this Act.

Section 11. Repealing Clause. All laws, decrees, orders, rules and regulations or parts thereof inconsistent with provisions of this Act are hereby repealed.

Section 12. Separability Clause. The declaration of unconstitutionality or invalidity of any provisions of this Act shall not effect the other provisions thereof.

Section 13. Effectivity. This Act shall take effect fifteen days after its complete publication in two (2) newspapers of general circulation in Filipino and English.

Approved,

 

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Two individuals accused of crime were brought to court for arraignment.  As they had no means of hiring a legal counsel to defend them, they were represented by the Public Attorney’s Office (PAO).

On the day of  arraingment, the PAO assigned to the court was besieged by numerous cases.  This is common in provinces where most litigants could not afford the services of lawyer.  No counsel de parte is inclined to receive chickens, goats or vegetables in lieu of attorney’s fees.

When the case was called, the PAO had only a moment to talk to the accused (it is highly doubtful that he has even read the information filed against him).  In a robot-like manner he entered his appearance as counsel de officio for the accused.

“Ginawa nyo ba itong krimen?” (Did you commit the crime charged against you?)

Both  accused who are naturally surprised with this blatant inquiry were only able to muster two words:  “No, Sir.”

Unknown to the accused and the PAO lawyer, the information filed against accused was patently defective.  Particularly, it did not conform to what was ordered in the Investigating Prosecutor’s resolution.

What is the remedy available to the accused in this tragic blunder?  Are they barred from asking the court to dismiss the case since they have not questioned the flawed information during the arraignment?

As the Rules of Court does not provide for a improvident plea of not guilty, what is left for the accused?

Solution may be a motion for determination of probable cause by the trial court under an exceptional case cited  by jurisprudence.


A candidate came to my office today and complained about his skyrocketing campaign expenses for this upcoming Barangay Elections.

I nearly fell from my seat when he disclosed that he has spent 120,000 pesos already (roughly 3,000 US dollars) for election related expenses.  This figure even  includes day-to-day merienda for his campaign staff, drinking sprees for tambay (bystanders) and unavoidable  dole-outs to voting constituents who are taking advantage of the election fever to earn a few bucks.

I have to remind him that the maximum allowable budget for each voter this Barangay Election is only P 3.00 per voter.

The pertinent regulation is COMELEC Resolution 9043.  Section 17 of the same provides:

SEC. 17. Limitation upon expenses of candidates. – No candidate shall spend for his election campaign an aggregate amount exceeding Three Pesos (P3.00) for every registered voter in the barangay where he seeks to be elected.

Supreme Court Circular No. 1-89

Criminal Cases

[1] The private offended party shall be required to appear at the arraignment for purposes of plea-bargaining, determination of civil liability or other matters requiring his presence.

[2] Where the accused and counsel agree to a pre-trial, the pre-trial shall proceed in accordance with Rule 118.

[3] If the accused does not agree to a pre-trial, the Court shall fix the trial dates for the presentation of evidence by the parties. The trial fiscal, the accused, and counsel shall affix their signatures in the minutes to signify their availability on the scheduled dates set for reception of evidence.

RULE 118 – PRE-TRIAL
Section 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by theSandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:

(a) plea bargaining;(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

Sec. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.

Sec. 3. Non-appearance at pre-trial conference. – If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties.

Sec. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course f the action during the trial, unless modified by the court to prevent manifest injustice.

 


In the case of CIVIL SERVICE COMMISSION vs.TRISTAN C. COLANGGO (G.R. No. 174935, April 30, 2008),  with Chief Justice Renato Corona as ponente, the Supreme Court ruled:

Administrative rules of procedure are construed liberally to promote their objective and to assist parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses. Section 39 of the Uniform Rules provides:

Section 39. The direct evidence for the complainant and the respondent consist of the sworn statement and documents submitted in support of the complaint or answer as the case may be, without prejudice to the presentation of additional evidence deemed necessary but was unavailable at the time of the filing of the complaint and the answer upon which the cross-examination, by the respondent and the complainant respectively, shall be based. Following the cross-examination, there may be re-direct or re-cross examination.

Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena orsubpoena duces tecum.

The investigation shall be conducted for the purpose of ascertaining the truth without necessarily adhering to technical rules applicable in judicial proceedings. It shall be conducted by the disciplining authority concerned or his authorized representatives. (emphasis supplied)

The provision above clearly states that the CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure and evidence applicable in judicial proceedings.

The CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS (though not duly authenticated) in determining whether there was sufficient evidence to substantiate the charges against the respondent. Worth noting was that respondent never objected to the veracity of their contents. He merely disputed their admissibility on the ground that they were not authenticated.

As a general rule, a finding of guilt in administrative cases, if supported by substantial evidence (or “that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion”), will be sustained by this Court.

 

Situation:  You are planning to sell a property somewhere in the Philippines.  Maybe you do not know how to go about it and how much it  will cost to do it. Here is a step by step process of registering a property transaction in the Philippines and the  estimated costs of selling, transfering and registering a property in the Philippines:

No. Procedure Time to Complete Associated Costs
1 Preparation of the deed of sale and ratification by notary public 

 

Anyone can prepare the document, however, the deed of sale must be ratified before the notary public and it is common for him to draft it and conduct the whole process on behalf of the parties.

1 day 1.5% property value, including PHP 100 for notarization alone
2 Obtain a certified true copy of latest tax declaration from the Assessor’s Office of Manila 

The seller obtains a certified true copy of the latest tax declaration from the Assessor’s Office of Manila.

Agency: Assessor’s Office

1 day PHP 100
3 Payment of Documentary Stamp Tax and Capital Gains Tax at an authorized bank 

The seller files the Documentary Stamp Tax return and Capital Gains Tax return with the authorized agent bank in the Revenue District of Manila. This is done within 5 days after the close of the month when the taxable document was signed or within 30 days after the sale, whichever is earlier. The taxes are paid at the authorized bank to the account of the Bureau of Internal Revenue. The Capital Gains Tax is 6% of capital gains based on selling price, fair market value or zonal value, whichever is higher.
The Documentary Stamp Tax is 1.5% based on selling price or fair market value, whichever is higher.

The documentation shall include:
Original copy and photocopy of notarized deed of sale of building (obtained in Procedure 1)
Certified true copy of transfer certificate of title (in the name of seller)
Certified true copy of latest tax declaration (in the name of seller) (obtained in Procedure 2)
Photocopy of the latest realty tax receipt
Letter-request
Identification card of the person requesting

Agency: Bank

1 day 1.5% of property value (Documentary Stamp Tax)
4 Obtain tax clearance (or Certificate Authorizing Registration) from the Bureau of Internal Revenue 

After paying the taxes in Procedure 3, the seller must obtain a tax clearance (or Certificate Authorizing Registration) from the Bureau of Internal Revenue. This certificate will authorize the registration of the property.

The documentation shall include:
Certified true copy of transfer certificate of title (in the name of seller)
Certified true copy of latest tax declaration (in the name of seller) (obtained in Procedure 2)
Tax identification numbers

Agency: Bureau of Internal Revenue

Up to 14 days PHP 115
5 Obtain a tax clearance certificate of Real Estate Taxes from the Treasurer’s Office of Manila 

The seller, after paying any due amounts, obtains a tax clearance certificate from the Treasurer’s Office of the Local Government Unit (Manila).
The documentation shall include: an original of the official receipt evidencing payment by seller of realty taxes.

Agency: Treasurer’s Office

1-3 days PHP 75
6 Payment of transfer tax at the Treasurer’s Office of Manila 

The transfer tax must be paid at the Treasurer’s Office of Manila.

The documentation shall include:
Certificate Authorizing Registration from the Bureau of Internal Revenue (obtained in Procedure 4)
Realty tax clearance from the Treasurer’s Office of Manila (obtained in Procedure 5)
Official receipt of the Bureau of Internal Revenue (for documentary stamp tax) (obtained in Procedure 4)

Agency: Treasurer’s Office

1 day 0.75% of property price (transfer tax) + PHP 125 (certificate of payment)
7 Apply with the Assessor’s Office of Manila for the issuance of a new tax declaration over the building in the name of buyer 

The buyer applies with the Assessor’s Office of Manila for the issuance of a new tax declaration over the building in his name.

The documentation shall include:
Photocopy of notarized deed of sale of building (obtained in Procedure 1)
Certified true copy of latest tax declaration (in the name of seller) (obtained in Procedure 2)
Certificate authorizing registration from the Bureau of Internal Revenue (obtained in Procedure 4)
Realty tax clearance from the Treasurer’s Office of Manila (obtained in Procedure 5)
Photocopy of official receipt of transfer tax payment (original copy to be presented) (obtained in Procedure 6)

Agency: Assessor’s Office

3 days no cost
8 Apply for registration with the Register of Deeds of Manila 

The buyer applies for registration with the Register of Deeds of Manila.
The following internal steps take place after the application is submitted:
1. The Entry clerk receives and enters all documents in the primary Entry Book (Judicial form No. 39) and notes therein the day, hour and minute of reception of all instrument in the order in which they are received.
2. Documents are then brought to the Registrar of Deeds (RD) or Deputy Register of Deeds for assignment.
3. Documents/Titles are assigned by the RD to the Land Registration Examiner (LRE) who prepares computation and order of payment of registration fees.
4. Pay registration fee to the cashier, who shall issue official receipt. Fixed fees are computed based on a schedule of Fees approved by the Department of Justice.
5. Upon the payment of the fees, the document is forwarded to the LRE who reviews the same and determines whether or not it is ready to register. The owner’s copy of the title is compared to the title on file, produced by Records Officer/Vault keeper.
6. If the instrument is not ready to be registered, the LRE recommends its denial to the RD. If the instrument is ready, the LRE likewise recommends to the RD the registration of the document through a routing slip.
7. RD reviews examination, and once same is approved, assigns documents to clerk for action, with instruction on the route slip.
8. If the transaction involves issuance of title, Records Officer/Judicial Form Custodian records the transaction in the logbook releases sets of title forms (judicial form) and assigns the corresponding title control number to the set of titles issued to the action clerk.
9. Assigned employee acts on the documents, as instructed.
10. Final registration – RD signs titles and documents.
11. Release of documents – by the releasing clerk to the buyer who should be ready with ID and copies of official receipts of the registration fees.

The documentation shall include:
Articles of incorporation and by-laws of the buyer
Secretary’s certificate containing the resolution of the board of directors of buyer approving the sale
Original copy of owner’s duplicate of the transfer certificate of title (in the name of seller)
Certificate authorizing registration from the Bureau of Internal Revenue (obtained in Procedure 4)
Realty tax clearance from the Treasurer’s Office of Manila (obtained in Procedure 5)
Official receipt of transfer tax payment (obtained in Procedure 6)
Official receipts of the Bureau of Internal Revenue (for capital gains tax and documentary stamp tax) (obtained in Procedure 3)

Agency: Register of Deeds

For a sample of an Deed of Absolute Sale, email askattybatoy@gmail.com
Source: http://www.doingbusiness.org/Data/ExploreEconomies/Philippines/registering-property

Question: Can an excessive bail bond recommendation be reduced?

Scenario:  Two carpenters on their way home figured in a brawl with street toughies (“istambays”).   As they were constrained to defend themselves with their carpentry tools (hammers and wood chisels), they were able to inflict physical injuries to their assailants.  However, the public prosecutor charged them with frustrated murder and recommended bail at P 120,000 each.

Answer: Yes.  Excessive bail can be reduced.  Legal basis is Sec. 20. Rule 114, The Revised Rules of Criminal Procedure which provides that:

Increase or reduction of bail. – After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

The Civil Code of the Philippines even sanctions those who do not reduce an excessive bail:

Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

xxx   xxx  xxx

(15) The right of the accused against excessive bail;

xxx   xxx  xxx

 

For a sample of a motion for reduction of bail, email askattybatoy@gmail.com.

 

Usual Scenarios of Property Partition:

Case No.1 – The one or both the parents  passed away.Children are left with properties in the name of the parents.  How can they subdivided these properties and registered the same in their names.

Case No. 2 – The parents already died. One of the children wants to transfer the properties of his parents to himself but other siblings do not agree.

The  first case can be solved by execution of an deed of extra-judicial partition.  This can be done if the requirements stated in Rule 74 Section 1 of the Rules of Court are present:

1. The decedent (parents who died)  left no will.
2. The decedent left no debts, or if there were debts left, all had been paid.
3. The heirs (children) are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives.
4. The partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.

The affidavit must be executed by the heirs and must contain the necessary allegations to support a valid extrajudicial settlement of estate. The affidavit shall be published in a newspaper of general circulation, once a week for three (3) consecutive weeks.

For a sample of a Deed of Extra judicial Partition, email askattybatoy@gmail.com


In the second case,  the child who demands that the properties of his dead parents should be partitioned and distributed to the heirs may file  an ordinary action for partition under Rule 69 of the Rules of Court. Under the said rule, a person having the right to compel partition of real estate may file a complaint in the Regional Trial Court (RTC) of the province where the real property or part thereof is located. If several distinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces.

The complaint for partition shall set forth the nature and extent of the complainant’s title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property (Section 1, Rule 69 Rules of Court).

For a sample of a Petition for Judicial Partition, email askattybatoy@gmail.com