LEGAL ETHICS Multiple choice. Choose the correct answer. Write the letter corresponding to yo ur answer. (1.

) Which of the following need not be verified? a) Petition for Certiorari; b) Interpleader; c) Petition for Habeas Corpus; d) Answer with compulsory counterclaim; e) All pleadings under the Rules on Summary Procedure. (2%) (2.) Which of the following statements is false? a) All administrative cases against Justices of appellate courts and judges of l ower courts fall exclusively within the jurisdiction of the Supreme Court. b) Administrative cases against erring Justices of the Court of Appeals and Sand iganbayan, judges, and lawyers in the government service are not automatically t reated as disbarment cases. c) The IBP Board of Governors may, motu proprio, or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, init iate and prosecute proper charges against erring lawyers including those in the government service. d) The filing of an administrative case against the judge is not a ground for di squalification/inhibition. e) Trial courts retain jurisdiction over the criminal aspect of offenses committ ed by justices of appellate courts and judges of lower courts. (2%) (3.) On which of the following is a lawyer proscribed from testifying as a witne ss in a case he is handling for a client: a) On the mailing of documents; b) On the authentication or custody of any instrument; c) On the theory of the case; d) On substantial matters in cases where his testimony is essential to the ends of justice. (2%) II. Mike Adelantado, an aspiring lawyer, disclosed in his petition to take the 2003 Bar Examinations that there were two civil cases pending against him for nullifi cation of contract and damages. He was thus allowed to conditionally take the ba r, and subsequently placed third in the said exams. In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the Lawyer s Oath and sign the Roll of Attorneys before the Supre me Court. The Office of the Bar Confidant, however, had received two anonymous l etters: the first alleged that at the time Mike Adelantado filed his petition to

take the bar, he had two other civil cases pending against him, as well as a cr iminal case for violation of Batas Pambansa (B.P.) Bilang 22; the other letter a lleged that Mike Adelantado, as Sangguniang Kabataan (SK) Chairperson, had been signing the attendance sheets of (SK) meetings as Atty. Mike Adelantado. a) Having passed the bar, can Mike Adelantado already use the appellation attorne y ? Explain your answer. (3%) b) Should Mike Adelantado be allowed to take his oath as a lawyer and sign the R oll of Attorneys? Explain your answer. (3%) III. Atty. Kuripot was one of Town Bank s valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P250,000.0 0. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank a lso filed a disbarment case against Atty. Kuripot. In his comment on the disbarment case, Atty. Kuripot insisted that he did not vi olate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation to his being a lawyer. a) Is Atty. Kuripot correct? Explain your answer. (3%) b) Explain whether Atty. Kuripot should be held administratively liable for his refusal to settle his credit card bill. (3%) IV. You had just taken your oath as a lawyer. The secretary to the president of a bi g university offered to get you as the official notary public of the school. She explained that a lot of students lose their Identification Cards and are requir ed to secure an affidavit of loss before they can be issued a new one. She claim ed that this would be very lucrative for you, as more than 30 students lose thei r Identification Cards every month. However, the secretary wants you to give her one-half of your earnings therefrom. Will you agree to the arrangement? Explain. (5%) V. Judge Horacio would usually go to the cockpits on Saturdays for relaxation, as t he owner of the cockpit is a friend of his. He also goes to the casino once a we ek to accompany his wife who loves to play the slot machines. Because of this, J udge Horacio was administratively charged. When asked to explain, he said that a lthough he goes to these places, he only watches and does not place any bets. Is his explanation tenable? Explain. (5%) VI. A business man is looking for a new retainer. He approached you and asked for yo ur schedule of fees or charges. He informed you of the professional fees he is p resently paying his retainer, which is actually lower than your rates. He said t hat if your rates are lower, he would engage your services.

Will you lower your rates in order to get the client? Explain. (5%) VII. (1.) Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a m otion to disqualify Judge Segotier on the ground that the counsel for the opposi ng party is also a member of the Phi Nu Phi Fraternity. Judge Segotier denied th e motion. Comment on his ruling. (5%) (2.) In an intestate proceeding, a petition for the issuance of letters of admin istration in favor of a Regional Trial Court Judge was filed by one of the heirs . Another heir opposed the petition on the ground that the judge is disqualified to become an administrator of the estate as he is the brother-in-law of the dec eased. Rule on the petition. (5%) VIII. Due to the number of cases handled by Atty. Cesar, he failed to file a notice of change of address with the Court of Appeals. Hence, he was not able to file an appellant s brief and consequently, the case was dismissed. Aggrieved, Atty. Cesar filed a motion for reconsideration of the resolution dismissing the appeal and to set aside the entry of judgment on the ground that he already indicated in hi s Urgent Motion for Extension of Time to File Appeal Brief his new address and tha t his failure to file a notice of change of address is an excusable negligence. Will the motion prosper? Explain. (5%) IX. Darius is charged with the crime of murder. He sought Atty. Francia s help and ass ured the latter that he did not commit the crime. Atty. Francia agreed to repres ent him in court. During the trial, the prosecution presented several witnesses whose testimonies convinced Atty. Francia that her client is guilty. She confron ted his client who eventually admitted that he indeed committed the crime. In vi ew of his admission, Atty. Francia decided to withdraw from the case. Should Atty. Francia be allowed to do so? Explain. (5%) X. Atty. Yabang was suspended as a member of the Bar for a period of During the period of suspension, he was permitted by his law firm rking in their office, drafting and preparing pleadings and other s but was not allowed to come into direct contact with the firms abang was subsequently sued for illegal practice of law. Would the case prosper? Explain. (5%) XI. one (1) year. to continue wo legal document clients. Atty. Y

Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporati on in a civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that she never handled the case of Kapamilya Corporati on when she was still with XXX law firm. Is there a conflict of interest? Explain. (5%) XII. Pending before the sala of Judge Magbag is the case of CDG versus JQT. The legal counsel of JQT is Atty. Ocsing who happens to be the brother of Atty. Ferreras, a friend of Judge Magbag. While the case was still being heard, Atty. Ferreras and his wife celebrated their wedding anniversary. They invited their friends an d family to a dinner party at their house in Forbes Park. Judge Magbag attended the party and was seen conversing with Atty. Ocsing while they were eating at th e same table. Comment on the propriety of Judge Magbag s act. (5%) XIII. Gerry Cruz is the owner of a 1,000-square meter lot covered by Transfer Certific ate of Title No. 12345 located in Sampaloc, Metro Manila. Gerry decided to sell the property but did not have the time to look for a buyer. He then designated h is brother, Jon, to look for a buyer and negotiate the sale. Jon met Angelo Sant os who expressed his interest to buy the lot. Angelo agreed to pay P1 Million fo r the property on September 26, 2005. a) Draft the Special Power of Attorney to be executed by Gerry Cruz, as principa l, in favor of his brother Jon, as agent, authorizing the latter to sell the pro perty in favor of Angelo Santos. (7%) b) Draft the Deed of Sale of Real Property. (7%) XIV. Draft a withdrawal of counsel without conformity of client. (6%) XV. Draft a Notice of Appeal. (6%) XVI. Draft a Certification of Non-Forum Shopping. (6%)

CIVIL LAW DIGEST July 4, 2007; J. Chico-Nazareo, Ponente; Third Division) Facts: Eulalia Raymundo (Eulalia) was engaged in the business of buying and selling lar ge cattle for which she employed biyaheros whose task involved the procuring of la rge cattle with the financial capital provided by petitioner and delivering the procured cattle to her for further disposal. In order to secure the financial ca pital she advanced for the biyaheros, Eulalia required them to surrender the Trans fer Certificates of Title (TCT) of their properties and to execute the correspon ding Deeds of Sale in her favor. Dominador Bandong (Domeng), who had been working for petitioner three decades, w as not required by Eulalia to post any security in the performance of his work. However, she discovered that Domeng incurred shortage in his cattle procurement operation in the amount of P70,000.00. Domeng and his wife Rosalia then executed a deed of sale in favor of Eulalia a registered parcel of land. On the strength of the aforesaid deed, the subject property was registered in the names of Eula lia and her husband Carlos. The subject property was thereafter sold by Spouses Raymundo to their grandniece Jocelyn Buenaobra. After the TCT of the subject pro perty was transferred to the name of Jocelyn and husband Angelito, they institut ed an action for ejectment against the Spouses Bandong before the MeTC. The lowe r court ruled in favor of the Spouses Buenaobra which, on appeal, was affirmed i n toto by the RTC and subsequently, by the Court of Appeals. To assert their right to the subject property, the Spouses Bandong instituted an action for annulment of sale before the RTC against Eulalia and Jocelyn allegin g that there was no sale intended but only equitable mortgage for the purpose of securing the shortage incurred by Domeng in the amount of P70,000 while employe d as biyahero by Eulalia. The RTC rendered a decision in favor of Eulalia and Joce lyn by declaring that the deed of sale valid and, consequently, the subsequent s ale between Eulalia and Jocelyn was also lawful. On appeal, the CA reversed the RTC Decision and found that the transaction entered into by Domeng and Eulalia w as not one of sale but an equitable mortgage. The Court of Appeals denied the Mo tion for Reconsideration filed by Spouses Raymundo and Buenaobra. Hence, this pe tition. Issue: Whether the deed of sale between Domeng and Eulalia is a contract of sale or an equitable mortgage. Ruling: An equitable mortgage is one that - although lacking in some formality, forms an d words, or other requisites demanded by a statute - nevertheless reveals the in tention of the parties to charge a real property as security for a debt and cont ains nothing impossible or contrary to law. The instances when a contract - rega rdless of its nomenclature - may be presumed to be an equitable mortgage are enu merated under Art. 1602 of the New Civil Code. In executing the said deed of sal e, Domeng and Eulalia never intended the transfer of ownership of the subject pr operty but to burden the same with an encumbrance to secure the indebtedness inc urred by Domeng on the occasion of his employment with Eulalia. The agreement be tween Dominador and Eulalia was not avoided in its entirety so as to prevent it from producing any legal effect at all. Instead, the said transaction is an equi table mortgage, thereby merely altering the relationship of the parties from sel ler and buyer, to mortgagor and mortgagee, while the subject property is not tra nsferred but subjected to a lien in favor of the latter. To reiterate, the exist ence of any one of the conditions under Article 1602 of the New Civil Code, not

a concurrence, or an overwhelming number of such circumstances, suffices to give rise to the presumption that the contract is an equitable mortgage.

Van Dorn vs. Romillo Jr., 139 SCRA 139, October 8, 1985, J. Teehankee Facts: Alice Reyes, a Filipina, married Richard Upton, an American, in Hongkong in 1972. They established residence in the Philippines and had two children. In 1982, the wife sued for divorce in Nevada, U.S.A., on the ground of incompatibil ity. She later married Theodore Van Dorn in Nevada in 1983. Upton sued her befor e RTC, Branch LXV in Pasay City asking that she be ordered to render an accounti ng of her business, which Upton alleged to be conjugal property. He also prayed that he be declared with a right to manage the conjugal property. The defendant wife moved to dismiss the complaint on the ground that the cause of action was b arred by a previous judgment in the divorce proceedings wherein he had acknowled ged that the couple had no community property . Issues: 1) Is absolute divorce decree granted by U.S. court, between Filipina wi fe and American husband held binding upon the latter? 2) Is the American husband barred by his own representation before the Nevada court from asserting his rig ht on alleged conjugal property? Ruling: The pivotal fact in this case is the Nevada Divorce of the parties. Ther e can be no question as to the validity of that Nevada divorce in any states of the U.S. The decree is binding on Upton as an American citizen. Hence, he cannot sue petitioner, as her husband, in any state of the United States. It is true t hat owing to the nationality principle under article 15 of the civil code, only Philippine nationals are covered by the policy against absolute divorce abroad, which maybe recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released Upton from the marriage from the standards of American law. Thus, pursuant to his national law, he is no longer the husband of the petitioner. He would have no standing to sue in the case as petitioner husband entitled to exercise control over conjugal as sets. He is also estopped by his own representation before the Nevada court from asserting his right over the alleged conjugal property. He should not continue to be one of her heirs with possible rights to conjugal property. CRIMINAL LAW DIGEST Ladlad vs. Velasco, et al. (G.R. Nos. 172070-72); Maza vs. Sec. Gonzales (G.R. N os. 172074-76); Beltran vs. People of the Philippines (G.R. No. 175013) - J. Car pio; 1 June 2007 Facts: Following the issuance by PGMA of Presidential Proclamation No. 1017 on 24 Febru ary 2006 declaring a State of National Emergency, Beltran was arrested without a w arrant. Beltran was subjected to an inquest for Inciting to Sedition under Artic le 142 of the RPC based on a speech Beltran allegedly gave during a rally in Que zon City on 24 February 2006. The inquest was based on the joint affidavit of Be ltran s arresting officers who claimed to have been present at the rally. When the authorities brought back Beltran to Camp Crame, he was subjected to a second in quest, this time for Rebellion, on the ground that Beltran is purportedly one of the leaders and promoters of an alleged foiled plot to overthrow the Arroyo gover nment. A panel of State prosecutors from the DOJ conducted this second inquest. Based on two letters, the DOJ sent subpoenas to Maza et al., requiring them to a ppear at the DOJ to get copies of the complaint and its attachment. Prior to their

receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being subjected to warrantless arrest. During the preliminary investigation, the counsel for the CIDG presented a maske d man who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave copie s of the affidavit to media members present during the proceedings. Issue: Whether or not the inquest proceeding against Beltran for Rebellion was v alid and whether there is probable cause to indict him for Rebellion. For the failure of Beltran s panel of inquest prosecutors to comply with Section 7 , Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, Beltran s i nquest is void. Inquest proceedings are proper only when the accused has been la wfully arrested without warrant. Section 5, Rule 113 of the Revised Rules of Cri minal Procedure provides the instances when such warrantless arrest may be effec ted, thus: Arrest Quote: without warrant; when lawful. A peace officer or a private person may, wit hout a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arr ested has committed it; and x x x x In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail an d shall be proceeded against in accordance with section 7 of Rule 112. The joint affidavit of Beltran s arresting officers states that the officers arres ted Beltran, without a warrant, for Inciting to Sedition, and not for Rebellion. When another group of prosecutors subjected Beltran to a second inquest proceed ing for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltran s arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circu mstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006. Under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inqu est officer is to determine if the arrest of the detained person was made in acco rdance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113. If t he arrest was not properly effected, the inquest officer should proceed under Se ction 9 of Circular No. 61 which provides: Where Quote:Arrest Not Properly Effected. Should the Inquest Officer find that the arre st was not made in accordance with the Rules, he shall: a) recommend the release of the person arrested or detained; b) note down the disposition on the referral document; c) prepare a brief memorandum indicating the reasons for the action taken; and d) forward the same, together with the record of the case, to the City or Provin cial Prosecutor for appropriate action. Moreover, there is no probable cause to indict Beltran for rebellion. Probable c ause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor , that the person charged was guilty of the crime for which he was prosecuted. Th e elements of Rebellion under Article 134 of the RPC are: 1. That Quote: there be a (a) public uprising and (b) taking arms against the Governmen t; and 2. That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territ ory of the Philippines or any part thereof; or (2) any body of land, naval, or o

ther armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of t heir powers and prerogatives. The allegations in these affidavits are far from the proof needed to indict Belt ran for taking part in an armed public uprising against the government. None of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebe llion. The Information in fact merely charges Beltran for conspiring and confeder ating with others in forming a tactical alliance to commit rebellion. As worded, th e Information does not charge Beltran with Rebellion but with Conspiracy to Comm it Rebellion, a bailable offense. Issue: Whether or not respondent prosecutors should be enjoined from continuing with the prosecution of the case against Masa et al. The preliminary investigation was tainted With rrregularities. The SC dones not, as a rule, enjoin the prosecution of offenses. However, such relief in equity m ay be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner or (b) to affor d adequate protection to constitutional rights. The procedure for preliminary investigation of offenses punishable by at least f our years, two months and one day is outlined in Section 3, Rule 112 of the Revi sed Rules of Criminal Procedure. Instead of following this procedure scrupulousl y, as what this Court had mandated in an earlier ruling, so that the constitution al right to liberty of a potential accused can be protected from any material da mage, respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such number as there are respondents) b e accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to adminis ter oath, or, in their absence or unavailability, before a notary public. Respon dent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Sec tion 3(a) of Rule 112. Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investig ation. If there is none, he shall dismiss the case, otherwise he shall issue a su bpoena to the respondents. Here, after receiving the CIDG letters, respondent pro secutors peremptorily issued subpoenas to petitioners requiring them to appear a t the DOJ office to secure copies of the complaints and its attachments. During th e investigation, respondent prosecutors allowed the CIDG to present a masked Fue ntes who subscribed to an affidavit before respondent prosecutor Velasco. Velasc o proceeded to distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent pr osecutors then required petitioners to submit their counter-affidavits in 10 day s. It was only four days later that petitioners received the complete copy of th e attachments to the CIDG letters. These uncontroverted facts belie the allegation that the preliminary investigati on was done in accordance with the Revised Rules o[f] Criminal Procedure. Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainant s antics during the investigation, and distributing copies of a witness affidavit to members of the media knowing that petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized t he investigation but also lent credence to petitioners claim that the entire proc eeding was a sham.

The Prosecutors were not impartial. Respondent Secretary of Justice, who exercis es supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, We [the DOJ] w ill just declare probable cause, then it s up to the [C]ourt to decide x x x. Petit ioners raised this issue in their petition, but respondents never disputed the v eracity of this statement. This clearly shows pre-judgment, a determination to f ile the Information even in the absence of probable cause.

August 18, 2006; J. Calledo Sr.; First Division Facts : On October 10, 2002, minor Frank Bansales was charged for the murder of his teac her Yvonne Declarador. The crime was committed with the attendance of the qualif ying aggravating circumstances of evident premeditation and abuse of superior st rength considering that the attack was made by the accused using a long knife wh ich the latter carried along with him from his house to the school against his l ady teacher who was unarmed and defenseless at the time of the murder. RTC rendered judgment on May 20, 2003 finding Bansales guilty of murder, a crime which carries an imposable penalty of reclusion perpetua to death under Article 248 of the RPC, as amended by R.A. 7659. However, the court suspended the sente nce of the accused and ordered his commitment to rehabilitation center pursuant to provision of P.D. 603. Surviving spouse Rennie Declarador filed a petition for certiorari under Rule 65 of the Rules of Court assailing that portion of the decision of the trial court s decision suspending the sentence of the accused and committing him to the rehab ilitation center. She claimed that under Article 192 of P.D. No. 603, as well as A.M. No. 02-1-18-SC (otherwise known as the Rule on Juveniles in Conflict with the Law), the benefit of a suspended sentence does not apply to a juvenile who i s convicted of an offense punishable by death, reclusion perpetua or life impris onment, hence, the accused is disqualified from availing the benefits of a suspe nded sentence. Issues : 1) Is Bansales qualified from availing the benefits of a suspended sentence? 2) Does R.A. 9344 amend Art. 192 of P.D. 603? Ruling : 1) No. A person who committed an offense punishable by death, life imprisonment or reclusion perpetua is disqualified from availing the benefits of a suspended sentence. Punishable is defined as deserving of, or capable, or liable to punishme nt; liable to be punished; may be punished; liable to punishment. The term punisha ble refers to the possible, not actual sentence. It is concerned with penalty whi ch may be, and not which is imposed after trial. The disqualification is based o n the nature of the crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty impo sed but the possible one which determines the disqualification of a juvenile 2) R. A. 9344 merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time of the pronouncement of his guilt. The other disqualifications in Article 192 of P.D. No. 603, as ame

nded, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 3 8 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua, life imprison ment or reclusion perpetua to death or death, are disqualified from having their sentences suspended. Case law has it that statutes in pari materia should be read and construed toget her because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complime ntary to the earlier enactments and in the passage of its acts the legislature i s supposed to have in mind the existing legislations on the subject and to have enacted the new act with reference thereto. Statutes in pari materia should be c onstrued together to attain the purpose of an expressed national policy. This is an en banc decision promulgated on June 21, 2007 (Justice Tinga, Ponente ). In the words of Justice Tinga: "This case aims for prime space in the firmame nt of our criminal law jurisprudence." Petitioner effectively concedes having pe rformed the felonious acts imputed against him, but instead insists that as a re sult, he should be adjudged guilty of frustrated theft only, not the felony in i ts consummated stage of which he was convicted. As far as can be told, the last time this Court extensively considered whether an accused was guilty of frustrat ed or consummated theft was in 1918, in People v. Adiao. Facts: The accused were sighted outside the Super Sale Club, a supermarket in SM-North EDSA, by a security guard who was then manning his post at the open parking area . One of the accused was wearing an identification card with the mark Receiving D ispatching Unit (RDU), hauling a push cart with cases of detergent of the well-kn own Tide brand. Petitioner unloaded these cases in an open parking space, where th e other accused was waiting. The other accused then returned inside the supermar ket and therafter emerged with more cartons of Tide Ultramatic. The accusd then left the parking area and haled a taxi. He boarded the cab and d irected it towards the parking space where the other accused was waiting. After the accused boarded the taxi with the goods, however, the guard stopped the taxi as it was leaving the open parking area. When the guard asked for a receipt of the merchandise, the accused reacted by fleeing on foot, but were apprehended. T he accused were charged with the crime of theft. After trial, both accused were convicted of consummated theft, a convicttion sus tained by the Court of Appeals. One of the accused thereafter brought the matter on appeal to the Supreme Court, primarily on the ground that the conviction be modified to only of frustrated - not consummated - theft. Issue: Whether or not the accused is guilty only of frustrated theft. Ruling: The accused is guilty of consummated theft. There's no such thing as "fr ustrated" theft. Ratio: Article 6 of the Revised Penal Code defines the three stages of crimes, namely t he consummated, frustrated and attempted felonies. A felony is consummated when a ll the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would prod uce the felony as a consequence but which, nevertheless, do not produce it by re ason of causes independent of the will of the perpetrator. Finally, it is attempt ed when the offender commences the commission of a felony directly by overt acts,

and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Each felony under the RPC has a subjective phase, or that portion of the acts cons tituting the crime included between the act which begins the commission of the c rime and the last act performed by the offender which, with prior acts, should r esult in the consummated crime. After that point has been breached, the subjecti ve phase ends and the objective phase begins. It has been held that if the offen der never passes the subjective phase of the offense, the crime is merely attemp ted. On the other hand, the subjective phase is completely passed in case of fru strated crimes, for in such instances, [s]ubjectively the crime is complete. Truly, an easy distinction lies between consummated and frustrated felonies on o ne hand, and attempted felonies on the other. So long as the offender fails to c omplete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of exe cution that define each crime under the RPC are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need t o compare the acts actually performed by the accused as against the acts that co nstitute the felony under the RPC. In contrast, the determination of whether a crime is frustrated or consummated n ecessitates an initial concession that all of the acts of execution have been pe rformed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whet her the felony was produced after all the acts of execution had been performed hin ges on the particular statutory definition of the felony. It is the statutory de finition that generally furnishes the elements of each crime under the RPC, whil e the elements in turn unravel the particular requisite acts of execution and ac companying criminal intent. The elements of the crime of theft as provided for in Article 308 of the RPC are : (1) that Quote: there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intim idation of persons or force upon things. The ability of the offender to freely dispose of the property stolen is not a co nstitutive element of the crime of theft. It finds no support or extension in Ar ticle 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. Such factor runs immaterial to the statutory d efinition of theft, which is the taking, with intent to gain, of personal proper ty of another without the latter s consent. While the Dio/Flores dictum is consider ate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded b y the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in th e frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with int ent to gain. Viewed from that perspective, it is immaterial to the product of th e felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the depr ivation from the owner alone has already ensued from such acts of execution. It might be argued, that the ability of the offender to freely dispose of the pr operty stolen delves into the concept of taking itself, in that there could be no

true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perha ps this point could serve as fertile ground for future discussion, but our conce rn now is whether there is indeed a crime of frustrated theft, and such consider ation proves ultimately immaterial to that question. Moreover, such issue will n ot apply to the facts of this particular case. We are satisfied beyond reasonabl e doubt that the taking by the petitioner was completed in this case. With inten t to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in th e parking lot, and long enough to load these onto a taxicab. Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deem ed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, whic h is the deprivation of one s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as a n act of execution, the offense could only be attempted theft, if at all. With t hese considerations, we can only conclude that under Article 308 of the RPC, the ft cannot have a frustrated stage. Theft can only be attempted or consummated. (That's quite long for a digest. You may want to read on for information purpose s) The U.S. v. Adiao decision A customs inspector was charged with theft after he abstracted a leather belt fr om the baggage of a foreign national and secreted the item in his desk at the Cu stom House. At no time was the accused able to get the merchandise out of the Cus tom House, and it appears that he was under observation during the entire transact ion. Based apparently on those two circumstances, the trial court had found him g uilty, instead, of frustrated theft. The Court reversed, saying that neither cir cumstance was decisive, and holding instead that the accused was guilty of consu mmated theft, finding that all the elements of the completed crime of theft are p resent. In support of its conclusion that the theft was consummated, the Court ci ted three (3) decisions of the Supreme Court of Spain. It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obta in full possession of the personal property prior to their apprehension. The int erval between the commission of the acts of theft and the apprehension of the th ieves did vary, from sometime later in the 1898 decision; to the very moment the t hief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1 897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actua l possession of the property belonging to another. The People v. Sobrevilla decision In 1929, the Court was again confronted by a claim that an accused was guilty on ly of frustrated rather than consummated theft. The case is People v. Sobrevilla , where the accused, while in the midst of a crowd in a public market, was alrea dy able to abstract a pocketbook from the trousers of the victim when the latter , perceiving the theft, caught hold of the [accused] s shirt-front, at the same tim

e shouting for a policeman; after a struggle, he recovered his pocket-book and l et go of the defendant, who was afterwards caught by a policeman. In rejecting th e contention that only frustrated theft was established, the Court simply said, without further comment or elaboration: "We believe that such a contention is gr oundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accused s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book. If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court c ases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, w as able to consummate the theft. The Dio decision In arguing that he should only be convicted of frustrated theft, petitioner cite s two decisions rendered many years ago by the Court of Appeals: People v. Dio an d People v. Flores. Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United State s Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished un loading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the chec kpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. In doing so, the appellate court pointed out that the evident intent of the accu sed was to let the boxes of rifles pass through the checkpoint, perhaps in the be lief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or che cking. This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative o f consummation is the ability of the thief to dispose freely of the articles sto len, even if it were more or less momentary. Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. The Flores decision This theory was applied again by the Court of Appeals some 15 years later, in Fl ores, a case which according to the division of the court that decided it, bore n o substantial variance between the circumstances [herein] and in [Dio]. Such concl usion is borne out by the facts in Flores. The accused therein, a checker employ ed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his t ruck at the terminal of the stevedoring company. The truck driver proceeded to s how the delivery receipt to the guard on duty at the gate of the terminal. Howev er, the guards insisted on inspecting the van, and discovered that the empty sea v an had actually contained other merchandise as well. The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the c onsummated crime. Before the Court of Appeals, accused argued in the alternative

that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explic itly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft. The Empelis v. IAC decision The Court in 1984 did finally rule directly that an accused was guilty of frustr ated, and not consummated, theft. As we undertake this inquiry, we have to recko n with the import of this Court s 1984 decision in Empelis v. IAC. As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the pr emises of his plantation, in the act of gathering and tying some coconuts. The a ccused were surprised by the owner within the plantation as they were carrying w ith them the coconuts they had gathered. The accused fled the scene, dropping th e coconuts they had seized, and were subsequently arrested after the owner repor ted the incident to the police. After trial, the accused were convicted of quali fied theft, and the issue they raised on appeal was that they were guilty only o f simple theft. The Court affirmed that the theft was qualified, following Artic le 310 of the Revised Penal Code, but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appea r, though, is that the disposition of that issue was contained in only two sente nces, which we reproduce in full: However, Quote: the crime committed is only frustrated qualified theft because petition ers were not able to perform all the acts of execution which should have produce d the felony as a consequence. They were not able to carry the coconuts away fro m the plantation due to the timely arrival of the owner. Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced the felon as a c onsequence. However, per Article 6 of the RPC, the crime is frustrated when the of fender performs all the acts of execution, though not producing the felony as a r esult. If the offender was not able to perform all the acts of execution, the cr ime is attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was frustrated because not all of the acts of execution were performed due to th e timely arrival of the owner. However, following Article 6 of the RPC, these fa cts should elicit the conclusion that the crime was only attempted, especially g iven that the acts were not performed because of the timely arrival of the owner , and not because of spontaneous desistance by the offenders. No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are ind eed evident problems with this formulation in Empelis. For these reasons, we can not attribute weight to Empelis as we consider the present petition. Notably, Em pelis has not since been reaffirmed by the Court, or even cited as authority on theft. SC Conclusion: We can only conclude that under Article 308 of the RPC, theft cannot have a frus trated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been pr oduced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the com pletion of the taking.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet t hey do not align with the legislated framework of the crime of theft. The Revise d Penal Code provisions on theft have not been designed in such fashion as to ac commodate said rulings. Again, there is no language in Article 308 that expressl y or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the lat er Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their err oneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since fou nd favor from this Court. We thus conclude that under the Revised Penal Code, there is no crime of frustra ted theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to ad opt said rulings in our jurisdiction. That it has taken all these years for us t o recognize that there can be no frustrated theft under the RPC does not detract from the correctness of this conclusion. It will take considerable amendments t o our RPC in order that frustrated theft may be recognized. Our deference to Via da yields to the higher reverence for legislative intent.

LEGAL ETHICS DIGEST (June 7, 2007; J. Garcia, Ponente; Special Third Division) Facts: By reason of a verified Petition (alleging acts of deceit, malpractice, grave mi sconduct, grossly immoral conduct and violation of oath as a lawyer) by his estr anged wife, Atty. Justo J. Paras was suspended from the practice of law for a pe riod of one (1) year, with a warning that commission of the same or similar offe nse in the future will result in the imposition of a more severe penalty. During the pendency of Atty. Paras motion for reconsideration, complainant-movant filed with the SC a Motion for Contempt and/or Disbarment, alleging thereunder, inter alia, that Atty. Paras violated the suspension order earlier issued by the Cour t with his continued practice of law. In a resolution, the SC denied Atty. Paras motion for reconsideration of his sus pension, and, at the same time, directed him to file his comment on the motion f or contempt and/or disbarment. He failed to file a comment. Issue: Whether or not Atty. Paras should be disbarred for violating the one-year suspension order? Ruling: There is no sufficient basis to support petitioner-movant s allegation that Atty. Paras violated the Court s suspension order, what with the fact that Atty. Paras h imself took the initiative to inform the lower courts of his one-year suspension from law practice. The purpose of disbarment is not meant as a punishment to de prive an attorney of a means of livelihood but is rather intended to protect the courts and the public from members of the bar who have become unfit and unworth y to be part of the esteemed and noble profession. Likewise, the purpose of the exercise of the power to cite for contempt is to safeguard the functions of the court to assure respect for court orders by attorneys who, as much as judges, ar e responsible for the orderly administration of justice.

However, for his failure to comply with the specific Order of the SC (for him to file his comment), Atty. Paras was reprimanded, with a warning that a more dras tic punishment will be imposed upon him for a repetition of the same act. All la wyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders o f the Court, these must be respected, especially by the bar or the lawyers who a re themselves officers of the courts. It is well to emphasize again that a resol ution of the Supreme Court is not be construed as a mere request, nor should it be complied with partially, inadequately or selectively. Court orders are to be respected not because the justices or judges who issue them should be respected, but because of the respect and consideration that should be extended to the jud icial branch of the government. This is absolutely essential if our government i s to be a government of laws and not of men. The imposition of this sanction in the present case would be more consistent with the avowed purpose of a disciplin ary case, which is not so much to punish the individual attorney as to protect t he dispensation of justice by sheltering the judiciary and the public from the m isconduct or inefficiency of officers of the court. (Full text of resolution)

MERCANTILE LAW DIGEST (Union Bank of the Philippines vs. Danilo Concepcion, G.R. No. 160727, 26 June 2 007; J. Garcia; First Division) Facts: In 1997, the EYCO Group of Companies filed with the SEC a petition for the decla ration of suspension of payment, appointment of a rehabilitation receiver/commit tee and approval of rehabilitation plan with an alternative prayer for liquidati on and dissolution of corporations ("Petition for Suspension of Payment"). Findi ng the petition to be sufficient in form and substance, the SEC Hearing Panel di rected the suspension of all actions, claims and proceedings against EYCO, et al . pending before any court, tribunal, board or office. At the same time, the Pan el set the petition for hearing. Meanwhile, a consortium of private banks which had granted credit facilities to EYCO, among them, Union Bank, convened to map out their collective collection op tions. The formation of a management committee (ManCom) to represent the credito r banks was agreed upon in that meeting. Subsequently, Union Bank decided to bre ak away from the consortium and filed a slew of civil cases against EYCO, et al. , including a complaint before RTC-Makati for a sum of money, with application f or preliminary attachment. The Makati RTC issued the desired writ of preliminary attachment, pursuant to which levy on attachment was annotated on titles of var ious parcels of land. Union Bank thereafter moved, on jurisdictional ground, for the dismissal of the SEC Case. On the same date, EYCO submitted its rehabilitation plan. In 1998, the SEC Hearing Panel appointed the regular members of the newly created ManCom for EYCO. Meanwhile, Union Bank, without awaiting for the SEC s ruling on its motion to dism iss the SEC Case, filed with the CA a petition for certiorari to nullify the SEC suspension order and its creation of the ManCom. Union Bank alleged that the ju risdiction over the basic petition for declaration of suspension of payment pert ains to the RTC under Act No. 1956, as amended, or the Insolvency Law. The CA re ndered judgment declaring Union Bank guilty of forum shopping and accordingly di

smissed its petition for certiorari. This was affirmed by the SC and the RTC-Mak ati subsequently issued an order indefinitely suspending the proceedings in that collection suit until further orders. The SEC Hearing Panel approved the rehabilitation plan. On appeal by the consort ium, the SEC en banc resolved to set aside the approval of the rehabilitation pl an, disapprove the Petition to be Declared in State of Suspension of Payment, an d order the liquidation and dissolution of the EYCO Group. In another order, the SEC en banc appointed respondent Concepcion to act, vice the dissolved Liquidat ion Committee, as EYCO Liquidator. Among Concepcion s first act as such liquidator was to file a Motion to Intervene and To Admit Motion to Set Aside Order of Att achment. Three days later, Concepcion submitted before the SEC a Liquidation Plan for the EYCO Group. The SEC approved the Concepcion-submitted Liquidation Plan. The RTC -Makati, however, denied the motion to intervene on the ground of lack of standi ng to intervene, his appointment as Liquidator being, according to the court, of doubtful validity. The order, in addition, granted Union Bank s earlier motion to declare EYCO in default, and set a date for the ex-parte reception of Union Ban k s evidence. Via a petition for certiorari and prohibition before the CA, Concepcion challeng ed the RTC s partial judgment and its earlier order denying the motion to interven e. The appellate court eventually issued the herein assailed Decision reversing the Makati RTC s impugned issuances and allowing Concepcion to intervene. Union Bank brought the matter to the SC. According to the petitioner, the respon dent s appointment as liquidator of EYCO was invalid for lack of jurisdiction on t he part of SEC to preside, in first place, over EYCO s liquidation and dissolution . Pressing on, the petitioner states that EYCO is already insolvent and insolven cy proceedings fall under the jurisdiction of regular courts under the Insolvenc y Law (Act No. 1956, as amended) in relation to the pertinent provision of R.A. No. 8799, otherwise known as the Securities Regulation Code. Issue: Whether or not the SEC has jurisdiction over the liquidation proceedings? Ruling: The underlying petition EYCO filed with and over which the SEC assumed jurisdict ion was one for declaration of suspension of payment, appointment of a rehabilit ation receiver/committee, approval of rehabilitation plan with alternative praye r for liquidation and dissolution. That the SEC, along the way, ordained EYCO s li quidation and dissolution did not, without more, strip the SEC of jurisdiction o ver the liquidation process. Albeit jurisdiction over a petition to declare a co rporation in a state of insolvency strictly lies with regular courts, the SEC po ssessed, during the period material, ample power under P.D. No. 902-A, as amende d, to declare a corporation insolvent as an incident of and in continuation of i ts already acquired jurisdiction over the petition to be declared in the state o f suspension of payments in the two instances provided in Section 5(d) thereof. Said Section 5(d) vests the SEC with exclusive and original jurisdiction over pe titions for suspension of payments which may either be: (a) a simple petition fo r suspension of payments based on the provisions of the Insolvency Law, i.e., th e petitioning corporation has sufficient assets to cover all its debts, but fore sees the impossibility of meeting the obligations as they fall due, or (b) a sim ilar petition filed by an insolvent corporation accompanied by a prayer for the creation of a management committee and/or rehabilitation receiver based on the p rovisions of P.D. No. 902-A, as amended by P.D. No. 1758. EYCO s petition for suspension of payment was, at bottom, a mix of both situations adverted to above. For, while EYCO, in the said petition, alleged being solvent

but illiquid, it nonetheless pleaded for the constitution of a rehabilitation r eceiver/committee, with an alternative prayer for liquidation, if warranted. Cle arly then, the SEC has, from the start, jurisdiction over EYCO s petition for susp ension of payment, such jurisdiction continuing for purposes of liquidation afte r it (SEC) declared EYCO insolvent. If the SEC contextually retained jurisdictio n over the liquidation of EYCO, is it but logical then that it has competence to appoint the respondent or any qualified individual for that matter as liquidato r. The Court is certainly aware of the transfer, effected by R.A. No. 8799, to the RTC of the SEC s jurisdiction defined under Section 5(d) of P.D. No. 902-A.[30] Su ch transfer, however, did not, as the petitioner and the RTC posit, divest the S EC of its jurisdiction over SEC Case No. 09-97-5764, given that it had already i ssued, as early as September 19, 1998, the suspension order after it found the p etition for suspension filed on September 16, 1998 to be sufficient in form and substance. Subsection 5.2 of R.A. No. 8799 prescribing the jurisdiction transfer and the rules on transition provides as follows: 5.2. The Quote: [Securities and Exchange] Commission s jurisdiction over all cases enumer ated under Section 5 of [P.D.] No. 902-A is hereby transferred to the appropriat e [RTC]: Provided that the Supreme Court may designate the [RTC] branches that s hall exercise jurisdiction over these cases. xxx The Commission shall retain jur isdiction over pending suspension of payments/rehabilitation cases filed as of 3 0 June 2000 until finally disposed. EYCO s petition for suspension for payment was, for all intents and purposes, stil l pending with the SEC as of June 30, 2000. Accordingly, the SEC s jurisdiction th ereon, by the express terms of R.A. No. 8999, still subsists until [the suspensio n of payment case and its incidents are] finally disposed. Given the above perspective, the Court is at a loss to understand petitioner s cha llenge against the right of the respondent to intervene in Civil Case No. 97-218 4, on the postulate that the latter lacks legal interest in the matter in litiga tion. (Full text of the decision here)

POLITICAL LAW DIGEST G.R. No. 174153, 25 October 2006; J. Carpio, Ponente; En Banc) Facts: On 15 February 2006, the group of Raul Lambino and Erico Aumentado ( Lambino Group ) commenced gathering signatures for an initiative petition to change the 1987 Co nstitution. On 25 August 2006, the Lambino Group filed a petition with the Commi ssion on Elections (COMELEC) to hold a plebiscite that will ratify their initiat ive petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 o r the Initiative and Referendum Act. The proposed changes under the petition wil l shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group claims that: (a) their petition had the su pport of 6,327,952 individuals constituting at least 12% of all registered voter s, with each legislative district represented by at least 3% of its registered v oters; and (b) COMELEC election registrars had verified the signatures of the 6. 3 million individuals. The COMELEC, however, denied due course to the petition for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant to the Su preme Court s ruling in Santiago vs. Commission on Elections. The Lambino Group el

evated the matter to the Supreme Court, which also threw out the petition. Issue: Whether or not the initiative petition does not comply with Section 2, Ar ticle XVII of the Constitution on direct proposal by the people? Ruling: Section 2, Article XVII of the Constitution is the governing provision that allo ws a people s initiative to propose amendments to the Constitution. While this pro vision does not expressly state that the petition must set forth the full text o f the proposed amendments, the deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt the relevant American juris prudence on people s initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people m ust sign on a petition containing such full text. The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amend ments is first shown to the people who express their assent by signing such comp lete proposal in a petition. The full text of the proposed amendments may be eit her written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full te xt of the proposed amendments before - not after - signing. Moreover, an initiative signer must be informed at the time of signing of the nat ure and effect of that which is proposed and failure to do so is deceptive and mis leading which renders the initiative void. In the case of the Lambino Group s petition, there s not a single word, phrase, or s entence of text of the proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people approve a shift fr om the Bicameral-Presidential to the Unicameral- Parliamentary system of governm ent. The signature sheet does not show to the people the draft of the proposed c hanges before they are asked to sign the signature sheet. This omission is fatal . An initiative that gathers signatures from the people without first showing to t he people the full text of the proposed amendments is most likely a deception, a nd can operate as a gigantic fraud on the people. That s why the Constitution requ ires that an initiative must be directly proposed by the people x x x in a petiti on - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation s fundamen tal law, the writing of the text of the proposed amendments cannot be hidden fro m the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. Issue: Whether or not the initiative violates Section 2, Article XVII of the Con stitution disallowing revision through initiatives? Ruling: Article XVII of the Constitution speaks of three modes of amending the Constitut ion. The first mode is through Congress upon three-fourths vote of all its Membe rs. The second mode is through a constitutional convention. The third mode is th

rough a people s initiative. Section 1 of Article XVII, referring to the first and second modes, applies to an y amendment to, or revision of, this Constitution. In contrast, Section 2 of Arti cle XVII, referring to the third mode, applies only to amendments to this Constit ution. This distinction was intentional as shown by the deliberations of the Cons titutional Commission. A people s initiative to change the Constitution applies on ly to an amendment of the Constitution and not to its revision. In contrast, Con gress or a constitutional convention can propose both amendments and revisions t o the Constitution. Does the Lambino Group s initiative constitute an amendment or revision of the Con stitution? Yes. By any legal test and under any jurisdiction, a shift from a Bic ameral-Presidential to a Unicameral-Parliamentary system, involving the abolitio n of the Office of the President and the abolition of one chamber of Congress, i s beyond doubt a revision, not a mere amendment. Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly implies a change that alters a basic princip le in the constitution, like altering the principle of separation of powers or t he system of checks-and-balances. There is also revision if the change alters th e substantial entirety of the constitution, as when the change affects substanti al provisions of the constitution. On the other hand, amendment broadly refers t o a change that adds, reduces, or deletes without altering the basic principle i nvolved. Revision generally affects several provisions of the constitution, whil e amendment generally affects only the specific provision being amended. Where the proposed change applies only to a specific provision of the Constituti on without affecting any other section or article, the change may generally be c onsidered an amendment and not a revision. For example, a change reducing the vo ting age from 18 years to 15 years is an amendment and not a revision. Similarly , a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. The changes in these examples do not entail any modification of sections or arti cles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-a nd-balances among or within the three branches. However, there can be no fixed rule on whether a change is an amendment or a rev ision. A change in a single word of one sentence of the Constitution may be a re vision and not an amendment. For example, the substitution of the word republican with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological bas is of the Constitution. Thus, each specific change will have to be examined case -by-case, depending on how it affects other provisions, as well as how it affect s the structure of government, the carefully crafted system of checks-and-balanc es, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisio ns of a constitution, a deliberative body with recorded proceedings is best suit ed to undertake a revision. A revision requires harmonizing not only several pro visions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblie s or constitutional conventions to undertake revisions. On the other hand, const itutions allow people s initiatives, which do not have fixed and identifiable deli berative bodies or recorded proceedings, to undertake only amendments and not re visions.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-par t test: the quantitative test and the qualitative test. The quantitative test as ks whether the proposed change is so extensive in its provisions as to change dir ectly the substantial entirety of the constitution by the deletion or alteration o f numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed chang e in the constitution. The main inquiry is whether the change will accomplish suc h far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic governme ntal plan includes change in its fundamental framework or the fundamental powers o f its Branches. A change in the nature of the basic governmental plan also includ es changes that jeopardize the traditional form of government and the system of c heck and balances. Under both the quantitative and qualitative tests, the Lambino Group s initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group s pro posed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constit ution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unica meral legislature. A change in the structure of government is a revision of the Constitution, as wh en the three great co-equal branches of government in the present Constitution a re reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliament ary system is a revision of the Constitution. Merging the legislative and execut ive branches is a radical change in the structure of government. The abolition a lone of the Office of the President as the locus of Executive Power alters the s eparation of powers and thus constitutes a revision of the Constitution. Likewis e, the abolition alone of one chamber of Congress alters the system of checks-an d-balances within the legislature and constitutes a revision of the Constitution . The Lambino Group theorizes that the difference between amendment and revision is on ly one of procedure, not of substance. The Lambino Group posits that when a deli berative body drafts and proposes changes to the Constitution, substantive chang es are called revisions because members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called amendments because the changes are made by ordinary people who do not make an occupation, profession, or vocation out of such endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Cons titution contradict the Lambino Group s theory. Where the intent of the framers an d the language of the Constitution are clear and plainly stated, courts do not d eviate from such categorical intent and language. Issue: Whether or not a revisit of Santiago vs. COMELEC is not necessary? Ruling: The petition failed to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people s initiative to amen d the Constitution. There is, therefore, no need to revisit this Court s ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in essential terms and conditions to cover the system of initiative to amend the Constitution. An af firmation or reversal of Santiago will not change the outcome of the present pet

ition. It s settled that courts will not pass upon the constitutionality of a stat ute if the case can be resolved on some other grounds. Even assuming that RA 6735 is valid, this will not change the result here becaus e the present petition violates Section 2, Article XVII of the Constitution, whi ch provision must first be complied with even before complying with RA 6735. Wor se, the petition violates the following provisions of RA 6735: a. Section 5(b), requiring that the people must sign the petition as signatories . The 6.3 million signatories did not sign the petition or the amended petition filed with the COMELEC. Only Attys. Lambino, Donato and Agra signed the petition and amended petition. b. Section 10(a), providing that no petition embracing more than one subject sha ll be submitted to the electorate. The proposed Section 4(4) of the Transitory P rovisions, mandating the interim Parliament to propose further amendments or rev isions to the Constitution, is a subject matter totally unrelated to the shift i n the form of government. (G.R. No. 113191, 18 September 1996; J. VITUG, Ponente; First Division) Facts: A complaint for illegal dismissal was filed against the Asian Development Bank ("ADB"). Upon receipt of summonses, both the ADB and the DFA notified the Labor Arbiter that the ADB, as well as its President and Officers, were covered by an immunity from legal process except for borrowings, guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement Establis hing the Asian Development Bank (the "Charter") in relation to Section 5 and Sec tion 44 of the Agreement Between The Bank And The Government Of The Philippines Regarding The Bank's Headquarters (the "Headquarters Agreement"). The Labor Arbi ter took cognizance of the complaint on the impression that the ADB had waived i ts diplomatic immunity from suit, and issued a judgment in favor of the complain ant. The ADB did not file an appeal, but the DFA sought a nullification with the NLRC. The latter denied the request. Issue: Whether or not ADB is immune from suit? Ruling: No. Under the Charter and Headquarters Agreement, the ADB enjoys immunity from legal process of every form, except in the specified cases of borrowing and guarantee operations, as well as the purchase, sale and underwriting of securities. The B ank s officers, on their part, enjoy immunity in respect of all acts performed by them in their official capacity. The Charter and the Headquarters Agreement gran ting these immunities and privileges are treaty covenants and commitments volunt arily assumed by the Philippine government which must be respected. Being an international organization that has been extended a diplomatic status, the ADB is independent of the municipal law. One of the basic immunities of an i nternational organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such a n organization to the authority of the local courts would afford a convenient me dium thru which the host government may interfere in their operations or even in fluence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to disc harge its responsibilities impartially on behalf of its member-states." The ADB didn't descend to the level of an ordinary party to a commercial transac tion, which should have constituted a waiver of its immunity from suit, by enter ing into service contracts with different private companies. There are two confl

icting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its c onsent, be made a respondent in the Courts of another sovereign. According to th e newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private act or acts jure gestionis. Certainly, the mere entering into a contr act by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the f oreign state is engaged in the activity in the regular course of business. If th e foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit o f a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. The service contracts r eferred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach. Issue: Whether or not the DFA has the legal standing to file the present petitio n? Ruling: The DFA's function includes, among its other mandates, the determination of pers ons and institutions covered by diplomatic immunities, a determination which, wh en challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed t o plead its case whenever necessary or advisable to enable it to help keep the c redibility of the Philippine government before the international community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are d uly regarded. In our country, this task falls principally on the DFA as being th e highest executive department with the competence and authority to so act in th is aspect of the international arena. (Full text here)

REMEDIAL LAW DIGEST October 14, 2005; J. Sandoval-Gutierrez, Ponente; Third Division) Facts : Respondent Susan Ramirez was the complaining witness in a criminal case for arson pending before the RTC. The accused was petitioner Maximo Alvarez, est ranged husband of Esperanza Alvarez, sister of respondent. On June 21, 1999, Esperanza Alvarez was called to the witness stand as the first witness against petitioner, her husband. Petitioner filed a motion to disqualif y Esperanza from testifying against him pursuant to Rule 130 of the Revised Rule s of Court on marital disqualification. Respondent filed an opposition to the motion. Pending resolution of the motion, the trial court directed the prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the re cords. The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19, 1999. This prompted respondent to file with the Court of Appeals a petition for certio rari with application for preliminary injunction and temporary restraining order . On May 31, 2000, the Appellate Court rendered a Decision nullifying and settin

g aside the assailed Orders issued by the trial court. Hence, this petition for review on certiorari. Issue : May Esperanza testify over the objection of her estranged husband on the ground of marital privilege? Ruling : Yes, Esperanza may testify over the objection of her husband. The disqu alification of a witness by reason of marriage under Sec. 22, Rule 130 of the Re vised Rules of Court has its exceptions as where the marital relations are so st rained that there is no more harmony to be preserved. The acts of the petitioner stamp out all major aspects of marital life. On the other hand, the State has a n interest in punishing the guilty and exonerating the innocent, and must have t he right to offer the testimony of Esperanza over the objection of her husband. Click http://www.supremecourt.gov.ph/jurisprudence/2005/oct2005/143439.htm to re ad the full text of the decision. LABOR LAW DIGEST Sy vs. Metropolitan Bank & Trust Company, 2 November 2006; J. Quisumbing; Third Division) Facts: Dennis Sy would have rendered 30 years of service by 18 August 1999 under the ba nk s retirement plan, which states that an employee must retire upon reaching the age of 55 years or after rendering 30 years of service, whichever comes earlier. However, on 5 February 1999, the bank reappointed him as branch manager for a t erm of one year with corresponding salary increment. On 10 November 1999, the bank released the results of the audit conducted in its Bajada branch where Sy was the branch manager. On 15 November 1999, Sy tendered an irrevocable letter of retirement requesting the timely release of his retire ment pay and other benefits. The bank denied his request averring that Sy allowe d spouses Gorgonio and Elizabeth Ong to conduct kiting activities (drawing of ch ecks against uncollected funds) in their account with the bank. Accordingly, the bank placed Sy under preventive suspension and gave him 48 hours to submit a wr itten explanation. In response, Sy explained that he merely made a wrong credit judgment. Not satis fied with his reply, the bank notified Sy of other alleged violations of company policies (unauthorized grant of accommodation to accounts engaged in kiting act ivities, among others). Sy refuted the other allegations, but the bank, feeling unconvinced, dismissed Sy on 15 December 1999. Sy filed against the bank a complaint for illegal suspension, illegal dismissal and money claims. However, the Labor Arbiter dismissed the case for lack of meri t. On appeal, the NLRC deemed Sy compulsory retired awarding him retirement bene fits, unpaid salary, monetary value of unused leave credits, 13th month pay, Chr istmas bonus, and refund of provident fund. The bank elevated the matter to the Court of Appeals, which set aside the ruling of NLRC and reinstated the decision of the Labor Arbiter. Upon motion for reconsideration, however, the appellate c ourt modified its ruling and ordered the bank to reimburse Sy s contribution to th e provident fund. Feeling aggrieved, Sy brought the matter to the Supreme Court, which denied the petition and affirmed the decision of the Court of Appeals. Issue: Whether Sy was illegally terminated? Ruling: No, the termination was valid.

Ratio: Sy was validly dismissed on the ground of fraud and willful breach of trust unde r Article 282 of the Labor Code. Records reveal that as a bank manager, he autho rized kiting activities in wanton violation of bank s policies. Sy s conduct betrays his culpability. Shortly after the audit, he tendered an irrevocable letter of retirement. Sy s evident failure to offer any reasonable excuse for such sudden sh ift in his plans is prejudicial to his cause. His premise that he could no longe r be dismissed by the bank after having been compulsorily retired is absurd. Ind eed, he would have qualified for retirement, however, he opted to accept the ban k s offer of extending his employment for another year. Thus, in effect, he had ne ver retired. Unfortunately for him, while serving such extended term, he committ ed an act which is a clear breach of trust reposed in him by the bank. He cannot now elude dismissal for a just cause by claiming he was already retired compuls orily. Issue: Is Sy nevertheless entitled to retirement benefits? Ruling: No. Ratio: Under the Labor Code, only unjustly dismissed employees are entitled to retireme nt benefits and other privileges including reinstatement and back wages. Since S y s dismissal was for a just cause, he is not entitled to any retirement benefit. To hold otherwise would be to reward acts of willful breach of trust by the empl oyee. It would also open the floodgate to potential anomalous banking transactio ns by the bank employees whose employments have been extended. Since the bank s op eration is essentially imbued with public interest, it owes great fidelity to th e public it deals with. In turn, it cannot be compelled to continue in its emplo y a person in whom it has lost trust and confidence and whose continued employme nt would patently be inimical to the bank s interest. While the scale of justice i s tilted in favor of workers, the law does not authorize blind submission to the claim of labor regardless of merit.

TAX DIGEST In its Decision ch 2003, the SC x was withdrawn 1 or LGC. No ongress. Facts: On 3 Aug. 1991, R.A. 7082 was approved, further amending the franchise of PLDT. Section 12 of said franchise provides that PLDT shall pay a franchise tax in lieu of all taxes on this franchise or earnings thereof. Section 12 reads: The grantee, its successors or assigns shall be liable to pay the same taxes on Quote: their real estate, buildings, and personal property, exclusive of this franchise , as other persons or corporations are now or hereafter may be required by law t o pay. In addition thereto, the grantee, its successors or assigns shall pay a f ranchise tax equivalent to three percent (3%) of all gross receipts of the telep hone or other telecommunications businesses transacted under this franchise by t he grantee, its successors or assigns, and the said percentage shall be in lieu of all taxes on this franchise or earnings thereof . . . On 1 Jan. 1992, the LGC took effect. Under this law, provinces and cities are au thorized to impose tax on all business with a franchise and withdrew tax exempti ons or incentives presently enjoyed by all persons. Section 193 reads: dated 22 August 2001, as affirmed in its Resolution dated 25 Mar ruled that PLDT s exemption from the payment of local franchise ta by R.A. 7160, otherwise known as The Local Government Code of 199 amendment to re-enact the previous tax exemption of PLDT was made by C

Withdrawal of Tax Exemption Privileges. Quote: Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, wh ether natural or juridical, including government-owned or -controlled corporatio ns, except local water districts, cooperatives duly registered under R.A. 6938, non-stock and non-profit hospitals and educational institutions, are hereby with drawn upon the effectivity of this Code. In 1992, Davao City passed Ordinance No. 159, imposing a tax on businesses enjoyi ng a franchise, at the rate of seventy-five percent (75%) of one percent (1%). On 1 March 1995, R.A. 7925 ( Public Telecommunications Policy Act of the Philippin es ) was approved, providing for the equality of treatment in the telecommunicatio ns industry. The pertinent provision is Section 23, which reads: Equality of Treatment in the Telecommunications Industry. Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may here after be granted, shall ipso facto become part of previously granted telecommuni cations franchise and shall be accorded immediately and unconditionally to the g rantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning terri tory covered by the franchise, the life span of the franchise, or the type of se rvice authorized by the franchise. On 2 June 1998, the Bureau of Local Government Finance (BLGF) rendered an opinio n to the effect that pursuant to R.A. 7925, PLDT is exempt from the payment of f ranchise and business taxes imposable under the LGC. In January 1999, PLDT applied for a Mayor s Permit to operate its Davao Metro Exch ange. The City of Davao withheld action on the application pending payment by PL DT of the local franchise tax for the first to the fourth quarter of 1999. PLDT protested the assessment of the local franchise tax and requested a refund of th e franchise tax paid by it for the year 1997 and the first to the third quarters of 1998. Here are PLDT s arguments and the corresponding Supreme Court s ruling: 1. PLDT argued that Smart and Globe are exempt from the franchise tax. Therefore , pursuant to the equality of treatment provision in Section 23 of R.A. 7925, it f ollows that PLDT must likewise be exempt from the tax being collected by the Cit y of Davao. In other words, the grant of tax exemption to Smart and Globe ipso f acto extends to PLDT. To begin with, tax exemptions are highly disfavored. The rule is that tax exempt ions should be granted only by clear and unequivocal provision of law expressed in a language too plain to be mistaken. Assuming that the word exemption in Sectio n 23 refers to tax exemption and assuming further that Globe and Smart are exempt under their respective charters, then this runabout way of granting tax exemptio n to PLDT is not direct, clear and unequivocal way of communicating legislative intent. The term exemption in 23 is too general. A cardinal rule in statutory construction is that legislative intent must be ascertained from a consideration of the statu te as a whole and not merely of a particular provision. There is nothing in the language of 23 nor in the proceedings of both the House of Representatives and th e Senate in enacting R.A. No. 7925 which shows that it contemplates the grant of tax exemptions to all telecommunications entities, including those whose exempt ions had been withdrawn by the LGC. Indeed, the word exemption in Section 23 does not mean tax exemption . In its origina l decision, the SC ruled that the word exemption in Section 23 of R.A. No. 7925 co uld contemplate exemption from certain regulatory or reporting requirements. In

its Resolution on PLDT s motion for reconsideration, the SC categorically stated t hat the term exemption refers to exemption from certain regulations and requiremen ts imposed by the National Telecommunications Commission. The best refutation of PLDT s argument is the fact that after the enactment of R.A . 7925, Congress granted several franchises with the in lieu of all taxes provisio n. If the equality clause under Section 23 of R.A. 7925 automatically extends th e in lieu of all taxes clause to subsequent franchises, there would have been no n eed to expressly include the clause in these franchises.

2. In its motion for reconsideration, PLDT argued that the legislative intent in R.A. 7925 is to promote the development of the telecommunications industry and that the way to achieve this purpose is to grant tax exemption or exclusion to f ranchises belonging to the industry. Moreover, by using the words advantage, favor, p rivilege, exemption, and immunity and the terms ipso facto, immediately and uncon y, Congress intended to automatically extend whatever tax exemption or exclusion that was granted after the LGC, to a holder of franchise enacted prior thereto. The SC ruled that the thrust of the law is to promote the gradual deregulation o f entry, pricing and operations of all public telecommunication entities. An int ent to grant tax exemption cannot even be discerned from the law. The records of Congress are bereft of any discussion on tax exemption. On the contrary, the sp onsorship speech on the house bill which served as the basis of R.A. 7925 mentio ned equal access clauses in interconnection agreements, not tax exemptions. 3. PLDT also argued that the policy behind R.A. 7925 is to promote healthy compe tition in the telecommunications industry. This law seeks to rectify the dispara te situation wherein some holders of franchise are exempt from local taxes. The SC ruled that one can speak of healthy competition only between equals. The i n lieu of all taxes provisions in other franchises cannot be deemed applicable to PLDT, which had virtual monopoly in the telephone service in the country for a long time, without defeating the very policy of leveling the playing filed of wh ich PLDT speaks. 4. The BLGF rendered an opinion that Section 23 of R.A. 7925 amended the franchi se of PLDT and in effect restored its exemptions from local taxes. Courts should not set aside the BLGF s contemporaneous construction because (a) its function is precisely the study of local tax problems and it has necessarily developed an e xpertise on the subject; and (b) it enjoys the presumption of regularity in the performance of its duty. BLGF is not an administrative agency whose findings on questions of fact are giv en weight and deference in the courts. The authorities cited by petitioner perta in to the Court of Tax Appeals, a highly specialized court which performs judici al functions as it was created for the review of tax cases. In contrast, the BLG F was created merely to provide consultative services and technical assistance t o local governments and the general public on local taxation, real property asse ssment, and other related matters, among others. The question raised by petition er is a legal question, to wit, the interpretation of Section 23 of R.A. No. 792 5. There is, therefore, no basis for claiming expertise for the BLGF that admini strative agencies are said to possess in their respective fields. It is true that the BLGF enjoys the presumption of regularity in the performance of its duty, but this has nothing to do with the question in this case. This ca se does not concern the regularity of performance of the BLGF in the exercise of its duties, but the correctness of its interpretation of a provision of law. It is noteworthy that, in holding Smart and Globe exempt from local taxes, the B LGF did not base its opinion on Section 23 but on the fact that the franchises g

ranted to them after the effectivity of the LGC exempted them from the payment o f local franchise and business taxes. 5. PLDT also argued in its motion for reconsideration that the rule of strict co nstruction of tax exemptions does not apply to this case because the in lieu of a ll taxes provision in its franchise is more of a tax exclusion. Exemption is an immunity or privilege; it is freedom from a charge or burden to which others are subjected. Exclusion, on the other hand, is the removal of othe rwise taxable items form the reach of taxation. The SC ruled that there is no di fference between tax exemption and tax exclusion, both in their nature and their effect. Besides, the uniform ruling of the SC is that the phrase in lieu of all taxes refers to tax exemptions. 6. In its motion for reconsideration, PLDT argued that its franchise is a specif ic law, and that the LGC is a general law. Accordingly, the specific law should prevail. Moreover, since the LGC and R.A. 7925 are inconsistent, R.A. 7925 shoul d prevail considering that it is the subsequent enactment. The SC already ruled in the case of City Government of San Pablo, Laguna vs. Rey es, that the phrase in lieu of all taxes found in special franchises should give w ay to Section 193 of the LGC. As to the alleged conflict between the LGC and R.A . 7925, the SC held that such conflict does not exist, as discussed above.