On "premature campaigning" under the automated election system

"xxx.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

x x x x

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:

x x x

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED."

EN BANC
G.R. No. 181613, November 25, 2009

ROSALINDA A. PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

R E S O L U T I O N
CARPIO, J.:

Domestic violence

Domestic violence 

Read:

https://m.facebook.com/story.php?story_fbid=pfbid02PuxyFeaCQ9dPrzsBVPe4xm6P9mqa14FbLXa1wM9LMC2248ZAWYWMuoKRCk8TE9HDl&id=100002290961177&mibextid=Nif5oz

https://m.facebook.com/story.php?story_fbid=pfbid02XcR6ivHmjasXKktdPCPzk4JNvKToyCw6LLC5zgtakPuSXL4tLuTzcQUXAkp3ZDT6l&id=100002290961177&mibextid=Nif5oz

https://m.facebook.com/story.php?story_fbid=pfbid02PkMZZpA2hg8qW3yp5T8w7dnYYMhbtkCWDyBm8ohtWx5KCnAqJEsQhDZHpwwAL7sDl&id=100002290961177&mibextid=Nif5oz

When Private Offended Party Can Appeal Judgments, Orders in Criminal Proceedings

SC Sets Rules on When Private Offended Party Can Appeal Judgments, Orders in Criminal Proceedings

February 4, 2023

The Supreme Court has laid down guidelines on the legal standing of private offended parties when questioning judgments or orders in criminal proceedings.

In a 36-page Decision penned by Justice Mario V. Lopez, the Supreme Court En Banc denied the Petition for Certiorari filed by Mamerto Austria challenging the ruling of the Court of Appeals (CA) which overturned the Regional Trial Court’s (RTC) acquittal of Austria on criminal charges of acts of lasciviousness.

In 2006, the RTC convicted Austria, a public school teacher, of five counts of acts of lasciviousness against two 11-year old female students (“private complainants”). Austria’s conviction, however, was reversed when a new presiding judge granted Austria’s motion for reconsideration.

After the private complainants’ own motion for reconsideration was denied, they elevated the case to the CA alleging grave abuse of discretion on the part of the RTC. The CA ruled in favor of the private complainants, finding that the RTC disregarded the constitutional requirement that a decision must express clearly and distinctly the facts and the law on which it is based. The CA also held that as the assailed RTC orders were void, double jeopardy did not attach. Nullifying the RTC’s orders, the CA ruled that the previous decision convicting Austria be reinstated.

This prompted Austria to challenge the appellate court’s ruling before the Supreme Court, invoking his right against double jeopardy and claiming that the private complainants had no legal personality to question his acquittal. The Supreme Court then required the Office of the Solicitor General (OSG) to file a comment on the private complainants’ legal standing in a criminal case.

In denying Austria’s petition, the High Court reviewed existing jurisprudence on the issue of the legal personality of a private offended party in criminal proceedings.

Harmonizing the divergent doctrines laid down in previous decisions, the Court formulated the following guidelines in determining the legal personality of a private offended party in questioning criminal judgments or orders:

As to the civil liability of the accused, the private complainant has the legal personality to appeal. The private offended party’s specific pecuniary interest should be alleged in the appeal or petition for certiorari.

If such appeal or petition necessarily affects the criminal aspect of the case or the right to prosecute, the reviewing court shall require the Office of the Solicitor General (OSG) to file a comment within a non-extendible period of 30 days from notice. The OSG’s comment must state whether it conforms or concurs with the remedy of the private complainant. If the OSG is not given an opportunity to comment, the private complainant’s relief may be set aside.

As to the criminal aspect of the case or the right to prosecute, the private complainant has no legal personality to appeal without the conformity of the OSG, to be requested by the private complainant within the period to appeal or file a petition for certiorari. If the OSG’s conformity is not granted within such period, the private complainant must allege in his or her appeal/petition that the request is still pending with the OSG. If the OSG denies the request for conformity, the reviewing court shall dismiss the private complainant’s appeal/petition for lack of legal personality.

When the petition for certiorari filed by the private complainant challenges the acquittal of the accused, the dismissal of the criminal case, and the interlocutory orders in criminal proceedings on the ground of grave abuse of discretion or denial of due process, the reviewing court shall require the OSG to file a comment within a non-extendible period of 30 days from notice.

These guidelines shall apply prospectively.

In Austria’s case, while the private complainants filed the petition before the CA without the OSG’s prior conformity, the Court held that they cannot be faulted for relying on jurisprudence allowing them to assail the criminal aspect of the case through a petition for certiorari on the grounds of grave abuse of discretion and denial of due process.

The Court also noted that in any event, the OSG later joined the cause of the private complainants and gave its conformity to the petition for certiorari filed before the CA.

The Court held further that the private complainants sufficiently established that the RTC’s acquittal orders were rendered “with grave abuse of discretion that is arbitrary, capricious, whimsical, or despotic exercise of judgment as when the assailed order is bereft of any factual and legal justification or when the disputed act of the trial court goes beyond the limits of discretion thus effecting an injustice.”

Thus, the CA was correct in nullifying the RTC’s orders, which simply copied the allegations of Austria in his motions for reconsideration and memoranda. “The Joint Orders are mere recital of facts with a dispositive portion. They contained neither an analysis of the evidence nor a reference to any legal basis for the conclusion,” said the Court.

Finally, as to the issue of double jeopardy, the Court ruled that as the RTC’s acquittal orders were void judgments, they have no legal effect and thus did not terminate the case. Hence, Austria’s right against double jeopardy was not violated.

While the Supreme Court affirmed the ruling of the CA in favor of the private complainants, the case was ordered remanded to the RTC for resolution of Austria’s motion for reconsideration in accordance with the constitutional requirement that a decision must express clearly and distinctly the facts and the law on which it is based.

FULL TEXT OF G.R. No. 205275 dated June 28, 2022 at https://sc.judiciary.gov.ph/32735/

Source - 

https://sc.judiciary.gov.ph/32794/

Default order

"xxx.

In a nutshell, the ultimate issue is: Did the court commit grave abuse of discretion amounting to lack or excess of jurisdiction in granting respondent's motion for a bill of particulars as executor of former President Marcos' estates considering that the deceased defendant was then a defaulting defendant when the motion was filed?

We rule in the negative, and dismiss the instant petition for utter lack of merit.

Under the Rules of Court, a defending party may be declared in default, upon motion and notice, for failure to file an answer within the allowable period. As a result, the defaulting party cannot take part in the trial albeit he is entitled to notice of subsequent proceedings.33

The remedies against a default order are: (1) a motion to set aside the order of default at any time after discovery thereof and before judgment on the ground that the defendant's failure to file an answer was due to fraud, accident, mistake or excusable neglect and that the defendant has a meritorious defense; (2) a motion for new trial within 15 days from receipt of judgment by default, if judgment had already been rendered before the defendant discovered the default, but before said judgment has become final and executory; (3) an appeal within 15 days from receipt of judgment by default; (4) a petition for relief from judgment within 60 days from notice of judgment and within 6 months from entry thereof; and (5) a petition for certiorari in exceptional circumstances.34

In this case, former President Marcos was declared in default for failure to file an answer. He died in Hawaii as an exile while this case was pending, since he and his family fled to Hawaii in February 1986 during a people-power revolt in Metro Manila. His representatives failed to file a motion to lift the order of default. Nevertheless, respondent, as executor of his father's estate, filed a motion for leave to file a responsive pleading, three motions for extensions to file an answer, and a motion for bill of particulars all of which were granted by the anti-graft court.

Given the existence of the default order then, what is the legal effect of the granting of the motions to file a responsive pleading and bill of particulars? In our view, the effect is that the default order against the former president is deemed lifted.

Considering that a motion for extension of time to plead is not a litigated motion but an ex parte one, the granting of which is a matter addressed to the sound discretion of the court; that in some cases we have allowed defendants to file their answers even after the time fixed for their presentation; that we have set aside orders of default where defendants' failure to answer on time was excusable; that the pendency of the motion for a bill of particulars interrupts the period to file a responsive pleading; and considering that no real injury would result to the interests of petitioner with the granting of the motion for a bill of particulars, the three motions for extensions of time to file an answer, and the motion with leave to file a responsive pleading, the anti-graft court has validly clothed respondent with the authority to represent his deceased father. The only objection to the action of said court would be on a technicality. But on such flimsy foundation, it would be erroneous to sacrifice the substantial rights of a litigant. Rules of procedure should be liberally construed to promote their objective in assisting the parties obtain a just, speedy and inexpensive determination of their case.35

While it is true that there was no positive act on the part of the court to lift the default order because there was no motion nor order to that effect, the anti-graft court's act of granting respondent the opportunity to file a responsive pleading meant the lifting of the default order on terms the court deemed proper in the interest of justice. It was the operative act lifting the default order and thereby reinstating the position of the original defendant whom respondent is representing, founded on the court's discretionary power to set aside orders of default.

It is noteworthy that a motion to lift a default order requires no hearing; it need be under oath only and accompanied by an affidavit of merits showing a meritorious defense.36 And it can be filed "at any time after notice thereof and before judgment." Thus, the act of the court in entertaining the motions to file a responsive pleading during the pre-trial stage of the proceedings effectively meant that respondent has acquired a locus standi in this case. That he filed a motion for a bill of particulars instead of an answer does not pose an issue because he, as party defendant representing the estate, is allowed to do so under the Rules of Court to be able to file an intelligent answer. It follows that petitioner's filing of a bill of particulars in this case is merely a condition precedent to the filing of an answer.

Indeed, failure to file a motion to lift a default order is not procedurally fatal as a defaulted party can even avail of other remedies mentioned above.

As default judgments are frowned upon, we have been advising the courts below to be liberal in setting aside default orders to give both parties every chance to present their case fairly without resort to technicality.37 Judicial experience shows, however, that resort to motions for bills of particulars is sometimes intended for delay or, even if not so intended, actually result in delay since the reglementary period for filing a responsive pleading is suspended and the subsequent proceedings are likewise set back in the meantime. As understood under Section 1 of Rule 12, mentioned above, a motion for a bill of particulars must be filed within the reglementary period for the filing of a responsive pleading to the pleading sought to be clarified. This contemplates pleadings which are required by the Rules to be answered under pain of procedural sanctions, such as default or implied admission of the facts not responded to.38

But as defaulted defendants are not actually thrown out of court because the Rules see to it that judgments against them must be in accordance with the law and competent evidence, this Court prefers that the lifting of default orders be effected before trial courts could receive plaintiffs' evidence and render judgments. This is so since judgments by default may result in considerable injustice to defendants, necessitating careful and liberal examination of the grounds in motions seeking to set them aside. The inconvenience and complications associated with rectifying resultant errors, if defendant justifies his omission to seasonably answer, far outweigh the gain in time and dispatch of immediately trying the case.39 The fact that former President Marcos was in exile when he was declared in default, and that he later died still in exile, makes the belated filing of his answer in this case understandably excusable.

The anti-graft court required the Marcos siblings through its January 11, 1999 Order40 to substitute for their father without informing them that the latter was already declared in default. They were unaware, therefore, that they had to immediately tackle the matter of default. Respondent, who stands as the executor of their father's estate, could assume that everything was in order as far as his standing in court was concerned. That his motion for leave to file a responsive pleading was granted by the court gave him credible reason not to doubt the validity of his legal participation in this case. Coupled with his intent to file an answer, once his motion for a bill of particulars is sufficiently answered by petitioner, the circumstances abovementioned warrant the affirmation of the anti-graft court's actions now being assailed.

Xxx."

SECOND DIVISION

G.R. No. 148154, December 17, 2007

REPUBLIC OF THE PHILIPPINES, represented by the Presidential Commission on Good Government (PCGG), petitioner,

vs.

SANDIGANBAYAN (Second Division) and FERDINAND R. MARCOS, JR. (as executor of the estate of FERDINAND E. MARCOS), respondents.

https://lawphil.net/judjuris/juri2007/dec2007/gr_148154_2007.html

SECOND DIVISION

G.R. No. 148154, December 17, 2007




REPUBLIC OF THE PHILIPPINES, represented by the Presidential Commission on Good Government (PCGG), petitioner,

vs.

SANDIGANBAYAN (Second Division) and FERDINAND R. MARCOS, JR. (as executor of the estate of FERDINAND E. MARCOS), respondents.




https://lawphil.net/judjuris/juri2007/dec2007/gr_148154_2007.html

Ratification of contract of sale

"xxx.

In the light of the foregoing disquisition, the question of whether or not petitioner’s undisputed utilization of the proceeds of the sale constitutes, within the purview of Article 1393 of the Civil Code,33 implied ratification of the contracts of sale need not detain us long. Suffice it to state in this regard that the ruling of the Court of Appeals on the matter is well-taken. Wrote the appellate court: 34

In the case at bench, Free Press’s own witnesses admitted that the proceeds of the 1973 sale were used to settle the claims of its employees, redeem the shares of its stockholders and finance the company’s entry into money-market shareholdings and fishpond business activities (TSN, 2 May 1988, pp. 16, 42-45). It need not be overemphasized that by using the proceeds in this manner, Free Press only too clearly confirmed the voluntaries of its consent and ratified the sale. Needless to state, such ratification cleanses the assailed contract from any alleged defects from the moment it was constituted (Art. 1396, Civil Code).

Petitioner’s posture that its use of the proceeds of the sale does not translate to tacit ratification of what it viewed as voidable contracts of sale, such use being a "matter of [its financial] survival",35 is untenable. As couched, Article 1393 of the Civil Code is concerned only with the act which passes for ratification of contract, not the reason which actuated the ratifying person to act the way he did. "Ubi lex non distinguit nec nos distinguere debemus. When the law does not distinguish, neither should we". 36

Finally, petitioner would fault the Court of Appeals for excluding Exhibits "X-6" to "X-7" and "Y-3" (proffer). These excluded documents which were apparently found in the presidential palace or turned over by the US Government to the PCGG, consist of, among others, what appears to be private respondent’s Certificate of Stock for 24,502 shares in the name of Gen. Menzi, but endorsed in blank. The proffer was evidently intended to show that then President Marcos owned private respondent, Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution of the main issue tendered in this case. Whether or not the contracts of sale in question are voidable is the issue, not the ownership of Liwayway Publishing, Inc.

Xxx."

THIRD DIVISION
G.R. No. 132864 October 24, 2005

PHILIPPINE FREE PRESS, INC., Petitioner,
vs.
COURT OF APPEALS (12th Division) and LIWAYWAY PUBLISHING, INC., Respondents.

https://lawphil.net/judjuris/juri2005/oct2005/gr_132864_2005.html

The novel provisions of the Charter prescribing private sector participation, especially in the field of economic activity, come, indeed, no more as responses to State monopoly of economic forces which has unfairly kept individual initiative from the economic processes and has held back competitiveness in the market. The Constitution does not bar, however, the Government from undertaking its own initiatives, especially in the domain of public service, and neither does it repudiate its primacy as chief economic caretaker of the nation.

"xxx.

There is no merit in this petition.

The duty of the State is preeminently "to serve . . . the people, 9 and so also, to "promote a just and dynamic social order . . . through policies that provide adequate social services. . . . and an improved quality of life for all. 10

The objectives of government, as expressed in the Charter, are, among other things, "a more equitable distribution of opportunities, income, and wealth . . . [and] a sustained increase in the amount of goods and services produced by the nation for the benefit of the people . . . "11 With respect in particular to property, the Constitution decrees:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. 12

There can hardly be any valid argument against providing for public corresponding, free of charge. It is compatible with State aims to serve the people under the Constitution, and certainly, amid these hard times, the State can do no less.

The petitioners can not legitimately rely on the provisions of Section 20, of Article II, of the Constitution, to defeat the act complained of. The mandate "recogni[zing] the indispensable role of the private sector" is no more than an acknowledgment of the importance of private initiative in building the nation. However, it is not a call for official abdication of duty to citizenry.

The novel provisions of the Charter prescribing private sector participation, especially in the field of economic activity, 13 come, indeed, no more as responses to State monopoly of economic forces which has unfairly kept individual initiative from the economic processes and has held back competitiveness in the market. The Constitution does not bar, however, the Government from undertaking its own initiatives, especially in the domain of public service, and neither does it repudiate its primacy as chief economic caretaker of the nation.

The principle of laissez faire has long been denied validity in this jurisdiction. In 1969, the Court promulgated Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions in Government Corporations and offices, 14 where it was held:

x x x x x x x x x

... The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally and only because it was better equipped to administer for the public welfare than in any private individual or group of individuals," continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. 15

The requirements of social justice and the necessity for a redistribution of the national wealth and economic opportunity find in fact a greater emphasis in the 1987 Constitution, notwithstanding the novel concepts inscribed there. 16 And two decades after this Court wrote it, ACCFAs message remains the same and its lesson holds true as ever.

The Court is not of the thinking that the act complained of is equivalent to a taking without just compensation. Albeit we have held that "[w]here the owner is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public use, there is taking within the constitutional sense, 17 it does not seem to us that the Department of Transportation and Communication, by providing for free public correspondence, is guilty of an uncompensated taking. Rather, the Government merely built a bridge that made the boat obsolete, although not entirely useless. Certainly, the owner of the boat can not charge the builder of the bridge for lost income. And certainly, the Government has all the right to build the bridge.

Xxx."


EN BANC
G.R. No. 86953, November 6, 1990.

MARINE RADIO COMMUNICATIONS ASSOCIATION OF THE PHILIPPINES, INC. (MARCAPI), ROBERTO GAYA, DAVID ZAFRA and SEGUNDO P. LUSTRE, JR., petitioners,

vs.

HON. RAINERIO O. REYES, in his capacity as Secretary of the Department of Transportation and Communications (DOTC), HON. JOSE LUIS ALCUAZ, as Commissioner of the National Telecommunications Commission (NTC), and HON. ROSAURO SIBAL, as Chief of the Telecommunications Office (TELOF) of DOTC, respondents.

https://lawphil.net/judjuris/juri1990/nov1990/gr_86953_1990.html

Creatures of Statute: Administrative Agencies in Practice

Questions of Power: Mallory v. Norfolk Southern Railway [Freedom of Thou...

What Are the Limits of Emergency Executive Powers?

Servitudes (Easements, Profits, Licenses, Real Covenants, and Equitable ...

Key Principles in Property Law [No. 86 LECTURE]

Tort Law [No. 86 LECTURE]

The Law of Contracts [No. 86 LECTURE]

"How to Read a Case" with UVA Law Professor Anne Coughlin

Overview of the American Legal System

Scalia Lecture | Justice Stephen G. Breyer, “The Authority of the Court ...

Civil liability in criminal cases, when inapplicable

"xxx.

Petitioner files the instant petition onthe civil aspect of the case alleging that:

THE TRIAL COURT WAS CORRECT IN CONVICTING THE RESPONDENT SO THAT EVEN IF THE COURT OF APPEALS DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST RETAINED THE AWARD OF DAMAGES TO THE PETITIONER.73

We find no merit in the petition.

To begin with, in Manantan v. CA,74 we discussed the consequences of an acquittal on the civil liability of the accused as follows:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the actor omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act oromission. There being no delict, civil liability ex delictois out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule III of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code, where the civil action for damages is "for the same act or omission." x x x.75

A reading of the CA decision would show that respondent was acquitted because the prosecution failed to prove his guilt beyond reasonable doubt. Said the CA:

The evidence for the prosecution being insufficient to prove beyond reasonable doubt that the crime as charged had been committed by appellant, the general presumption, "that a person is innocent of the crime or wrong, stands in his favor. The prosecution failed to prove that all the elements of estafa are present in this case as would overcome the presumption of innocence in favor of appellant. For in fact, the prosecution's primary witness herself could not even establish clearly and precisely how appellant committed the alleged fraud. She failed to convince us that she was deceived through misrepresentations and/or insidious actions, in venturing into a remittance business. Quite the contrary, the obtaining circumstance inthis case indicate the weakness of her submissions.76

Thus, since the acquittal is based on reasonable doubt, respondent is not exempt from civil liability which may be proved by preponderance of evidence only. In Encinas v. National Bookstore, Inc.,77 we explained the concept of preponderance of evidence as follows:

x x x Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.78

The issue of whether petitioner gave respondent the amount of US$100,000.00 is factual. While we are not a trier of facts, there are instances, however, when we are called upon to re-examine the factual findings of the trial court and the Court of Appeals and weigh, after considering the records of the case, which of the conflicting findings is more in accord with law and justice.79 Such is the case before us.

In discrediting petitioner’s allegation that she gave respondent US$100,000.00 in May 2002, the CA found that: (1) petitioner failed to show how she was able to raise the money in such a short period of time and even gave conflicting versions on the source of the same; (2) petitioner failed to require respondent to sign a receipt so she could have a record of the transaction and offered no plausible reason why the money was allegedly hand-carried toHong Kong; (3) petitioner’s claim of trust as reason for not requiring respondent to sign a receipt was inconsistent with the way she conducted her previous transactions with him; and (4) petitioner’s behavior after the alleged fraud perpetrated against her was inconsistent with the actuation ofsomeone who had been swindled.

We find no reversible error committed by the CA in its findings.

Petitioner failed to prove on how she raised the money allegedly given to respondent. She testified that from December 2001 to May 2002, she was raising the amount of US$100,000.00 as the capital for the actual operation of the Phillip Salvador Freight and Remittance International Limited in Hong Kong,80 and that she was ableto raise the same in May 2002.81 She did so by selling82 or pawning83 her pieces of diamond jewelry. However, there was no documentary evidence showing those transactions within the period mentioned. Upon further questioning on cross-examination on where she got the money, she then said that she had plenty of dollars as she is a frequent traveler to Hong Kong and Bangkok to shop for her boutique in Glorietta and Star Mall.84 Such testimony contradicts her claim that she was still raising the money for 5 months and that she was only able to formally raise the money in May 2002.

There was also no receipt that indeed US$100,000.00 was given by petitioner to respondent.1âwphi1 Petitioner in her testimony, both in the direct and cross examinations, said that the US$100,000.00 given to respondent was for the actual expenses for setting up the office and the operation of the business in Hong Kong.85 She claimed that she treated the freight and remittance business like any of her businesses;86 that she, respondent, and the latter’s brother even agreed to divide whatever profits they would have from the business;87 and that giving US$100,000.00 to respondent was purely business to her.88 She also said that she kept records of all her business, such that, if there are no records, there are no funds entrusted89 . Since petitioner admitted that giving the money to respondent was for business, there must be some records ofsuch transaction as what she did in her other businesses.

In fact, it was not unusual for petitioner to ask respondent for some documents evidencing the latter's receipt of money for the purpose of business as this was done in her previous business dealings with respondent. She had asked respondent to execute a real estate mortgage on his condominium unit90 for the ₱5 million she loaned him in August 2001. Also, when petitioner gave respondent an additional loan of ₱10 million in December 2001, for the latter to redeem the title to his condominium unit from the bank, she had asked him to sign an acknowledgment receipt for the total amount of ₱15 million he got from her.91 She had done all these despite her testimony that she trusted respondent from the day they met in December 2000 until the day he ran away from her in August 2003.92

Petitioner insists that she did not ask for any acknowledgment receipt from respondent, because the latter told her not to have traces that she was giving money to him as it might jeopardize her then ongoing annulment proceedings. However, petitioner's testimony would belie such claim of respondent being cautious of the annulment proceedings. She declared that when she and her husband separated, respondent stood as a father to her children.93 Respondent attended school programs of her children,94 and fetched them from school whenever the driver was not around.95 In fact, at the time the annulment case was already pending, petitioner registered the freight and remittance business under respondent’s name and the local branch office of the business would be in petitioner's condominium unit in Makati.96 Also, when petitioner went with her mother and Ramon to Hong Kong to register the business, it was respondent who tookcare of her children. She intimated that it was respondent who was insistent in going to their house.

Worthy to mention is that petitioner deposited the amount of ₱500,000.00 to respondent's account with United Coconut Planters Bank (UCPB) in July 2003.97 Also, when respondent was in New York in August 2003, petitioner sent him the amount of US$2,000.00 by telegraphic transfer.98 Petitioner's act ofdepositing money to respondent's account contradicted her claim that there should be no traces that she was giving money to respondent during the pendency of the annulment case.

Petitioner conceded that she could have either bought a manager's check in US dollars from the bank orsend the money by bank transfer, but she did not do so on the claim that there might be traces of the transaction.99 However, the alleged US$100,000.00was supposed to be given to respondent because of the freight and remittance business; thus, there is nothing wrong to have a record of the same, specially since respondent had to account for the valid expenseshe incurred with the money.100

The testimony of Enrico, petitioner's brother, declaring that he was present when petitioner gave respondent the US$100,000.00 did not help. Enrico testified that when petitioner filed the instant case in September 2004, another case was also filed by petitioner against respondent and his brother Ramon in the same City Prosecutor's office in Las Piñas where Enrico had submitted his affidavit. Enrico did not submit an affidavit in this case even when he allegedly witnessed the giving of the money to respondent as petitioner told him that he could just testify for the other case. However, when the other case was dismissed, it was then that petitioner told him to be a witness in this case. Enrico should have been considered at the first opportunity if he indeed had personal knowledge of the alleged giving of money to respondent. Thus, presenting Enrico as a witness only after the other case was dismissed would create doubt as to the veracity of his testimony.

WHEREFORE, the petition for review is DENIED. The Decision dated February 11, 2010, of the Court of Appeals in CA-G.R. CR No. 30151, is hereby AFFIRMED.

SO ORDERED.

Xxx."

G.R. No. 191240 July 30, 2014

CRISTINA B. CASTILLO, Petitioner,
vs.
PHILLIP R. SALVADOR, Respondent.

https://lawphil.net/judjuris/juri2014/jul2014/gr_191240_2014.html

REPUBLIC ACT No. 11313 - SAFE SPACES ACT - An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor.

REPUBLIC ACT No. 11313

An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor

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

Section 1. Short Title. -This Act shall be known as the "Safe Spaces Act".

Section 2. Declaration of Policies. -It is the policy of the State to value the dignity of every human person and guarantee full respect for human rights. It is likewise the policy of the State to recognize the role of women in nation-building and ensure the fundamental equality before the law of women and men. The State also recognizes that both men and women must have equality, security and safety not only in private, but also on the streets, public spaces, online, workplaces and educational and training institutions.

Section 3. Definition of Terms. -As used in this Act:

(a) Catcalling refers to unwanted remarks directed towards a person, commonly done in the form of wolf-whistling and misogynistic, transphobic, homophobic, and sexist slurs;

(b) Employee refers to a person, who in exchange for remuneration, agrees to perform specified services for another person, whether natural or juridical, and whether private or public, who exercises fundamental control over the work, regardless of the term or duration of agreement: Provided, That for the purposes of this law, a person who is detailed to an entity under a subcontracting or secondment agreement shall be considered an employee;

(c) Employer refers to a person who exercises control over an employee: Provided, That for the purpose of this Act, the status or conditions of the latter’s employment or engagement shall be disregarded;

(d) Gender refers to a set of socially ascribed characteristics, norms, roles, attitudes, values and expectations identifying the social behavior of men and women, and the relations between them;

(e) Gender-based online sexual harassment refers to an online conduct targeted at a particular person that causes or likely to cause another mental, emotional or psychological distress, and fear of personal safety, sexual harassment acts including unwanted sexual remarks and comments, threats, uploading or sharing of one’s photos without consent, video and audio recordings, cyberstalking and online identity theft;

(f) Gender identity and/or expression refers to the personal sense of identity as characterized, among others, by manner of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with physiological characteristics of the opposite sex in which case this person is considered transgender:

(g) Public spaces refer to streets and alleys, public parks, schools, buildings, malls, bars, restaurants, transportation terminals, public markets, spaces used as evacuation centers, government offices, public utility vehicles as well as private vehicles covered by app-based transport network services and other recreational spaces such as, but not limited to, cinema halls, theaters and spas; and

(h) Stalking refers to conduct directed at a person involving the repeated visual or physical proximity, non-consensual communication, or a combination thereof that cause or will likely cause a person to fear for one’s own safety or the safety of others, or to suffer emotional distress.

ARTICLE I

GENDER-BASED STREETS AND PUBLIC SPACES

SEXUAL HARASSMENT

Section 4. Gender-Based Streets and Public Spaces Sexual Harassment. -The crimes of gender-based streets and public spaces sexual harassment are committed through any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks.

Gender-based streets and public spaces sexual harassment includes catcalling, wolf-whistling, unwanted invitations, misogynistic, transphobic, homophobic and sexist slurs, persistent uninvited comments or gestures on a person’s appearance, relentless requests for personal details, statement of sexual comments and suggestions, public masturbation or flashing of private parts, groping, or any advances, whether verbal or physical, that is unwanted and has threatened one’s sense of personal space and physical safety, and committed in public spaces such as alleys, roads, sidewalks and parks. Acts constitutive of gender-based streets and public spaces sexual harassment are those performed in buildings, schools, churches, restaurants, malls, public washrooms, bars, internet shops, public markets, transportation terminals or public utility vehicles.

Section 5. Gender-Based Sexual Harassment in Restaurants and Cafes, Bars and Clubs, Resorts and Water Parks, Hotels and Casinos, Cinemas, Malls, Buildings and Other Privately-Owned Places Open to the Public. -Restaurants, bars, cinemas, malls, buildings and other privately-owned places open to the public shall adopt a zero-tolerance policy against gender-based streets and public spaces sexual harassment. These establishments are obliged to provide assistance to victims of gender-based sexual harassment by coordinating with local police authorities immediately after gender-based sexual harassment is reported, making CCTV footage available when ordered by the court, and providing a safe gender-sensitive environment to encourage victims to report gender-based sexual harassment at the first instance.

All restaurants, bars, cinemas and other places of recreation shall install in their business establishments clearly-visible warning signs against gender-based public spaces sexual harassment, including the anti-sexual harassment hotline number in bold letters, and shall designate at least one (1) anti-sexual harassment officer to receive gender-based sexual harassment complaints. Security guards in these places may be deputized to apprehend perpetrators caught in flagrante delicto and are required to immediately coordinate with local authorities.

Section 6. Gender-Based Sexual Harassment in Public Utility Vehicles. -In addition to the penalties in this Act, the Land Transportation Office (LTO) may cancel the license of perpetrators found to have committed acts constituting sexual harassment in public utility vehicles, and the Land Transportation Franchising and Regulatory Board (LTFRB) may suspend or revoke the franchise of transportation operators who commit gender-based streets and public spaces sexual harassment acts. Gender-based sexual harassment in public utility vehicles (PUVs) where the perpetrator is the driver of the vehicle shall also constitute a breach of contract of carriage, for the purpose of creating a presumption of negligence on the part of the owner or operator of the vehicle in the selection and supervision of employees and rendering the owner or operator solidarity liable for the offenses of the employee.

Section 7. Gender-Based Sexual Harassment in Streets and Public Spaces Committed by Minors. -In case the offense is committed by a minor, the Department of Social Welfare and Development (DSWD) shall take necessary disciplinary measures as provided for under Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006".

Section 8. Duties of Local Government Units (LGUs). -local government units (LGUs) shall bear primary responsibility in enforcing the provisions under Article I of this Act. LGUs shall have the following duties:

(a) Pass an ordinance which shall localize the applicability of this Act within sixty (60) days of its effectivity;

(b) Disseminate or post in conspicuous places a copy of this Act and the corresponding ordinance;

(c) Provide measures to prevent gender-based sexual harassment in educational institutions, such as information campaigns and anti-sexual harassment seminars;

(d) Discourage and impose fines on acts of gender-based sexual harassment as defined in this Act;

(e) Create an anti-sexual harassment hotline; and

(f) Coordinate with the Department of the Interior and Local Government (DILG) on the implementation of this Act.

Section 9. Role of the DILG. -The DILG shall ensure the full implementation of this Act by:

(a) Inspecting LGUs if they have disseminated or posted in conspicuous places a copy of this Act and the corresponding ordinance;

(b) Conducting and disseminating surveys and studies on best practices of LGUs in implementing this Act; and

(c) Providing capacity-building and training activities to build the capability of local government officials to implement this Act in coordination with the Philippine Commission on Women (PCW). the Local Government Academy (LGA) and the Development Academy of the Philippines (DAP).

Section 10. Implementing Bodies for Gender-Based Sexual Harassment in Streets and Public Spaces. -The Metro Manila Development Authority (MMDA), the local units of the Philippine National Police (PNP) for other provinces, and the Women and Children’s Protection Desk (WCPD) of the PNP shall have the authority to apprehend perpetrators and enforce the law: Provided, That they have undergone prior Gender Sensitivity Training (GST). The PCW. DILG and Department of Information and Communications Technology (DICT) shall be the national bodies responsible for overseeing the implementation of this Act and formulating policies that will ensure the strict implementation of this Act.

For gender-based streets and public spaces sexual harassment, the MMDA and the local units of the PNP for the provinces shall deputize its enforcers to be Anti-Sexual Harassment Enforcers (ASHE). They shall be deputized to receive complaints on the street and immediately apprehend a perpetrator if caught in flagrante delicto. The perpetrator shall be immediately brought to the nearest PNP station to face charges of the offense committed. The ASHE unit together with the Women’s and Children’s Desk of PNP stations shall keep a ledger of perpetrators who have committed acts prohibited under this Act for purposes of determining if a perpetrator is a first-time, second-time or third-time offender. The DILG shall also ensure that all local government bodies expedite the receipt and processing of complaints by setting up an Anti-Sexual Harassment Desk in all barangay and city halls and to ensure the set-up of CCTVs in major roads, alleys and sidewalks in their respective areas to aid in the filing of cases and gathering of evidence. The DILG, the DSWD in coordination with the Department of Health (DOH) and the PCW shall coordinate if necessary to ensure that victims are provided the proper psychological counseling support services.

Section 11. Specific Acts and Penalties for Gender-Based Sexual Harassment in Streets and Public Spaces. -The following acts are unlawful and shall be penalized as follows:

(a) For acts such as cursing, wolf-whistling, catcalling, leering and intrusive gazing, taunting, pursing, unwanted invitations, misogynistic, transphobic, homophobic, and sexist slurs, persistent unwanted comments on one’s appearance, relentless requests for one’s personal details such as name, contact and social media details or destination, the use of words, gestures or actions that ridicule on the basis of sex, gender or sexual orientation, identity and/or expression including sexist, homophobic, and transphobic statements and slurs, the persistent telling of sexual jokes, use of sexual names, comments and demands, and any statement that has made an invasion on a person’s personal space or threatens the person’s sense of personal safety –

(1) The first offense shall be punished by a fine of One thousand pesos (₱1,000.00) and community service of twelve (12) hours inclusive of attendance to a Gender Sensitivity Seminar to be conducted by the PNP in coordination with the LGU and the PCW;

(2) The second offense shall be punished by arresto menor (6 to 10 days) or a fine of Three thousand pesos (₱3,000.00);

(3) The third offense shall be punished by arresto menor (11 to 30 days) and a fine of Ten thousand pesos (₱10,000.00).

(b) For acts such as making offensive body gestures at someone, and exposing private parts for the sexual gratification of the perpetrator with the effect of demeaning, harassing, threatening or intimidating the offended party including flashing of private parts, public masturbation, groping, and similar lewd sexual actions –

(1) The first offense shall he punished by a fine of Ten thousand pesos (₱10,000.00) and community service of twelve (12) hours inclusive of attendance to a Gender Sensitivity Seminar, to be conducted by the PNP in coordination with the LGU and the PCW;

(2) The second offense shall be punished by arresto menor (11 to 30 days) or a fine of Fifteen thousand pesos (₱15,000.00);

(3) The third offense shall be punished by arresto mayor (1 month and 1 day to 6 months) and a fine of Twenty thousand pesos (₱20,000.00).

(c) For acts such as stalking, and any of the acts mentioned in Section 11 paragraphs (a) and (b), when accompanied by touching, pinching or brushing against the body of the offended person; or any touching, pinching, or brushing against the genitalia, face, arms, anus, groin, breasts, inner thighs, face, buttocks or any part of the victim’s body even when not accompanied by acts mentioned in Section 11 paragraphs (a) and (b) –

(1) The first offense shall be punished by arresto rnenor (11 to 30 days) or a line of Thirty thousand pesos (₱30,000.00), provided that it includes attendance in a Gender Sensitivity Seminar, to be conducted by the PNP in coordination with the LGU and the PCW;

(2) The second offense shall be punished by arresto mayor (1 month and 1 day to 6 months) or a fine of Fifty thousand pesos (₱50,000.00);

(3) The third offense shall be punished by arresto mayor in its maximum period or a fine of One hundred thousand pesos (₱100,000.00).

ARTICLE II

GENDER-BASED ONLINE SEXUAL HARASSMENT

Section 12. Gender-Based Online Sexual Harassment. -Gender-based online sexual harassment includes acts that use information and communications technology in terrorizing and intimidating victims through physical, psychological, and emotional threats, unwanted sexual misogynistic, transphobic, homophobic and sexist remarks and comments online whether publicly or through direct and private messages, invasion of victim’s privacy through cyberstalking and incessant messaging, uploading and sharing without the consent of the victim, any form of media that contains photos, voice, or video with sexual content, any unauthorized recording and sharing of any of the victim’s photos, videos, or any information online, impersonating identities of victims online or posting lies about victims to harm their reputation, or filing, false abuse reports to online platforms to silence victims.

Section 13. Implementing Bodies for Gender-Based Online Sexual Harassment. -For gender-based online sexual harassment, the PNP Anti-Cybercrime Group (PNPACG) as the National Operational Support Unit of the PNP is primarily responsible for the implementation of pertinent Philippine laws on cybercrime, shall receive complaints of gender-based online sexual harassment and develop an online mechanism for reporting real-time gender-based online sexual harassment acts and apprehend perpetrators.1âшphi1 The Cybercrime Investigation and Coordinating Center (CICC) of the DICT shall also coordinate with the PNPACG to prepare appropriate and effective measures to monitor and penalize gender-based online sexual harassment.

Section 14. Penalties for Gender-Based Online Sexual Harassment. -The penalty of prision correccional in its medium period or a fine of not less than One hundred thousand pesos (₱100,000.00) but not more than Five hundred thousand pesos (₱500,000.00), or both, at the discretion of the court shall be imposed upon any person found guilty of any gender-based online sexual harassment.

If the perpetrator is a juridical person, its license or franchise shall be automatically deemed revoked, and the persons liable shall be the officers thereof, including the editor or reporter in the case of print media, and the station manager, editor and broadcaster in the case of broadcast media. An alien who commits gender-based online sexual harassment shall be subject to deportation proceedings after serving sentence and payment of fines.

Exemption to acts constitutive and penalized as gender-based online sexual harassment are authorized written orders of the court for any peace officer to use online records or any copy thereof as evidence in any civil, criminal investigation or trial of the crime: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses may produce, and upon showing that there are reasonable grounds to believe that gender-based online sexual harassment has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such crime.

Any record, photo or video, or copy thereof of any person that is in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

ARTICLE III

QUALIFIED GENDER-BASED STREETS, PUBLIC SPACES

AND ONLINE SEXUAL HARASSMENT

Section 15. Qualified Gender-Based Streets, Public Spaces and Online Sexual Harassment. -The penalty next higher in degree will be applied in the following cases:

(a) If the act takes place in a common carrier or PUV, including, but not limited to, jeepneys, taxis, tricycles, or app-based transport network vehicle services, where the perpetrator is the driver of the vehicle and the offended party is a passenger;

(b) If the offended party is a minor, a senior citizen, or a person with disability (PWD), or a breastfeeding mother nursing her child;

(c) If the offended party is diagnosed with a mental problem tending to impair consent;

(d) If the perpetrator is a member of the uniformed services, such as the PNP and the Armed Forces of the Philippines (AFP), and the act was perpetrated while the perpetrator was in uniform; and

(e) If the act takes place in the premises of a government agency offering frontline services to the public and the perpetrator is a government employee.

ARTICLE IV

GENDER-BASED SEXUAL HARASSMENT IN THE WORKPLACE

Section 16. Gender-Based Sexual Harassment in the Workplace. -The crime of gender-based sexual harassment in the workplace includes the following:

(a) An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;

(b) A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;

(c) A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient: Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee; and

(d) Information and communication system refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents.

Section 17. Duties of Employers. -Employers or other persons of authority, influence or moral ascendancy in a workplace shall have the duty to prevent, deter, or punish the performance of acts of gender-based sexual harassment in the workplace. Towards this end, the employer or person of authority, influence or moral ascendancy shall:

(a) Disseminate or post in a conspicuous place a copy of this Act to all persons in the workplace;

(b) Provide measures to prevent gender-based sexual harassment in the workplace, such as the conduct of anti-sexual harassment seminars;

(c) Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment which shall:

(1) Adequately represent the management, the employees from the supervisory rank, the rank-and-file employees, and the union, if any;

(2) Designate a woman as its head and not less than half of its members should be women;

(3) Be composed of members who should be impartial and not connected or related to the alleged perpetrator;

(4) Investigate and decide on the complaints within ten (10) days or less upon receipt thereof;

(5) Observe due process;

(6) Protect the complainant from retaliation; and

(7) Guarantee confidentiality to the greatest extent possible;

(d) Provide and disseminate, in consultation with all persons in the workplace, a code of conduct or workplace policy which shall:

(1) Expressly reiterate the prohibition on gender-based sexual harassment;

(2) Describe the procedures of the internal mechanism created under Section 17(c) of this Act; and

(3) Set administrative penalties.

Section 18. Duties of Employees and Co-Workers. -Employees and co-workers shall have the duty to:

(a) Refrain from committing acts of gender-based sexual harassment;

(b) Discourage the conduct of gander-based sexual harassment in the workplace;

(c) Provide emotional or social support to fellow employees, co-workers, colleagues or peers who are victims of gender-based sexual harassment; and

(d) Report acts of gender-based sexual harassment witnessed in the workplace.

Section 19. Liability of Employers.— In addition to liabilities for committing acts of gender-based sexual harassment, employers may also be held responsible for:

(a) Non-implementation of their duties under Section 17 of this Act, as provided in the penal provisions; or

(b) Not taking action on reported acts of gender-based sexual harassment committed in the workplace.

Any person who violates subsection (a) of this section, shall upon conviction, be penalized with a fine of not less than Five thousand pesos (₱5,000.00) nor more than Ten thousand pesos (₱10,000.00).

Any person who violates subsection (b) of this section, shall upon conviction, be penalized with a fine of not less than Ten thousand pesos (₱10,000.00) nor more than Fifteen thousand pesos (₱15,000.00).

Section 20. Routine Inspection. -The Department of Labor and Employment (DOLE) for the private sector and the Civil Service Commission (CSC) for the public sector shall conduct yearly spontaneous inspections to ensure compliance of employers and employees with their obligations under this Act.

ARTICLE V

GENDER-BASED SEXUAL HARASSMENT IN
EDUCATIONAL AND TRAINING INSTITUTIONS

Section 21. Gender-Based Sexual Harassment in Educational and Training Institutions.— All schools, whether public or private, shall designate an officer-in-charge to receive complaints regarding violations of this Act, and shall, ensure that the victims are provided with a gender-sensitive environment that is both respectful to the victims’ needs and conducive to truth-telling.

Every school must adopt and publish grievance procedures to facilitate the filing of complaints by students and faculty members. Even if an individual does not want to file a complaint or does not request that the school take any action on behalf of a student or faculty member and school authorities have knowledge or reasonably know about a possible or impending act of gender-based sexual harassment or sexual violence, the school should promptly investigate to determine the veracity of such information or knowledge and the circumstances under which the act of gender-based sexual harassment or sexual violence were committed, and take appropriate steps to resolve the situation. If a school knows or reasonably should know about acts of gender-based sexual harassment or sexual violence being committed that creates a hostile environment, the school must take immediate action to eliminate the same acts, prevent their recurrence, and address their effects.

Once a perpetrator is found guilty, the educational institution may reserve the right to strip the diploma from the perpetrator or issue an expulsion order.

The Committee on Decorum and Investigation (CODI) of all educational institutions shall address gender-based sexual harassment and online sexual harassment in accordance with the rules and procedures contained in their CODI manual.

Section 22. Duties of School Heads. -School heads shall have the following duties:

(a) Disseminate or post a copy of this Act in a conspicuous place in the educational institution;

(b) Provide measures to prevent gender-based sexual harassment in educational institutions, like information campaigns;

(c) Create an independent internal mechanism or a CODI to investigate and address complaints of gender-based sexual harassment which shall:

(1) Adequately represent the school administration, the trainers, instructors, professors or coaches and students or trainees, students and parents, as the case may be;

(2) Designate a woman as its head and not less than half of its members should be women;

(3) Ensure equal representation of persons of diverse sexual orientation, identity and/or expression, in the CODI as far as practicable;

(4) Be composed of members who should be impartial and not connected or related to the alleged perpetrator;

(5) Investigate and decide on complaints within ten (10) days or less upon receipt, thereof;

(6) Observe due process;

(7) Protect the complainant from retaliation; and

(8) Guarantee confidentiality to the greatest extent possible.

(d) Provide and disseminate, in consultation with all persons in the educational institution, a code of conduct or school policy which shall:

(1) Expressly reiterate the prohibition on gender-based sexual harassment;

(2) Prescribe the procedures of the internal mechanism created under this Act; and

(3) Set administrative penalties.

Section 23. Liability of School Heads.— In addition to liability for committing acts of gender-based sexual harassment, principals, school heads, teachers, instructors, professors, coaches, trainers, or any odier person who has authority, influence or moral ascendancy over another in an educational or training institution may also be held responsible for:

(a) Non-implementation of their duties under Section 22 of this Act, as provided in the penal provisions; or

(b) Failure to act on reported acts of gender-based sexual harassment committed in the educational institution.

Any person who violates subsection (a) of this section, shall upon conviction, be penalized with a fine of not less than Five thousand pesos (₱5,000.00) nor more than Ten thousand pesos (₱10,000.00).

Any person who violates subsection (b) of this section, shall upon conviction, be penalized with a fine of not less than Ten thousand pesos (₱10,000.00) nor more than Fifteen thousand pesos (₱15,000.00).

Section 24. Liability of Students.— Minor students who are found to have committed acts of gender-based sexual harassment shall only be held liable for administrative sanctions by the school as stated in their school handbook.

Section 25. Routine Inspection.— The Department of Education (DepEd), the Commission on Higher Education (CHED), and the Technical Education and Skills Development Authority (TESDA) shall conduct regular spontaneous inspections to ensure compliance of school heads with their obligations under this Act.

ARTICLE VI

COMMON PROVISIONS

Section 26. Confidentiality.— At any stage of the investigation, prosecution and trial of an offense under this Act, the rights of the victim and the accused who is a minor shall be recognized.

Section 27. Restraining Order.— Where appropriate, the court, even before rendering a final decision, may issue an order directing the perpetrator to stay away from the offended person at a distance specified by the court, or to stay away from the residence, school, place of employment, or any specified place frequented by the offended person.

Section 28. Remedies and Psychological Counselling.— A victim of gender-based street, public spaces or online sexual harassment may avail of appropriate remedies as provided for under the law as well as psychological counselling services with the aid of the LGU and the DSWD, in coordination with the DOH and the PCW. Any fees to be charged in the course of a victim’s availment of such remedies or psychological counselling services shall be borne by the perpetrator.

Section 29. Administrative Sanctions.— Above penalties are without prejudice to any administrative sanctions that may be imposed if the perpetrator is a government employee.

Section 30. Imposition of Heavier Penalties.— Nothing in this Act shall prevent LGUs from coming up with ordinances that impose heavier penalties for the acts specified herein.

Section 31. Exemptions.— Acts that are legitimate expressions of indigenous culture and tradition, as well as breastfeeding in public shall not be penalized.

ARTICLE VII

FINAL PROVISIONS

Section 32. PNP Women and Children’s Desks.— The women and children’s desks now existing in all police stations shall act on and attend to all complaints covered under this Act. They shall coordinate with ASHE officers on the street, security guards in privately-owned spaces open to the public, and anti-sexual harassment officers in government and private offices or schools in the enforcement of the provisions of this Act.

Section 33. Educational Modules and Awareness Campaigns.— The PCW shall take the lead in a national campaign for the awareness of the law. The PCW shall work hand-in-hand with the DILG and duly accredited women’s groups to ensure all LGUs participate in a sustained information campaign and the DICT to ensure an online campaign that reaches a wide audience of Filipino internet-users. Campaign materials may include posters condemning different forms of gender-based sexual harassment, informing the public of penalties for committing gender-based sexual harassment, and infographics of hotline numbers of authorities.

All schools shall educate students from the elementary to tertiary level about the provisions of this Act and how they can report cases of gender-based streets, public spaces and online sexual harassment committed against them. School courses shall include age-appropriate educational modules against gender-based streets, public spaces and online sexual harassment which shall be developed by the DepEd, the CHED, the TESDA and the PCW.

Section 34. Safety Audits. -LGUs are required to conduct safety audits every three (3) years to assess the efficiency and effectivity of the implementation of this Act within their jurisdiction. Such audits shall be multisectoral and participatory, with consultations undertaken with schools, police officers, and civil society organizations.

Section 35. Appropriations.— Such amounts as may be necessary for the implementation of this Act shall be indicated under the annual General Appropriations Act (GAA). National and local government agencies shall be authorized to utilize their mandatory Gender and Development (GAD) budget, as provided under Republic Act No. 9710, otherwise known as "The Magna Carta of Women" for this purpose. In addition, LGUs may also use their mandatory twenty percent (20%) allocation of them annual internal revenue allotments for local development projects as provided under Section 287 of Republic Act No. 7160, otherwise known as the "Local Government Code of 1991".

Section 36. Prescriptive Period.— Any action arising from the violation of any of the provisions of this Act shall prescribe as follows:

(a) Offenses committed under Section 11(a) of this Act shall prescribe in one (1) year;

(b) Offenses committed under Section 11(b) of this Act shall prescribe in three (3) years;

(c) Offenses committed under Section 11(c) of this Act shall prescribe in ten (10) years;

(d) Offenses committed under Section 12 of this Act shall be imprescriptible; and

(e) Offenses committed under Sections 16 and 21 of this Act shall prescribe in five (5) years.

Section 37. Joint Congressional Oversight Committee.— There is hereby created a Joint Congressional Oversight Committee to monitor the implementation of this Act and to review the implementing rules and regulations promulgated. The Committee shall be composed of five (5) Senators and five (5) Representatives to be appointed by the Senate President and the Speaker of the House of Representatives, respectively. The Oversight Committee shall be co-chaired by the Chairpersons of the Senate Committee on Women, Children. Family Relations and Gender Equality and the House Committee on Women and Gender Equality.

Section 38. Implementing Rules and Regulations (IRR).— Within ninety (90) days from the effectivity of this Act, the PCW as the lead agency, in coordination with the DILG, the DSWD, the PNP, the Commission on Human Rights (CHR), the DOH, the DOLE, the DepEd, the CHED, the DICT, the TESDA, the MMDA, the LTO, and at least three (3) women’s organizations active on the issues of gender-based violence, shall formulate the implementing rules and regulations (IRR) of this Act.

Section 39. Separability Clause.— If any provision or part hereof is held invalid or unconstitutional, the remaining provisions not affected thereby shall remain valid and subsisting.

Section 40. Repealing Clause.— Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or inconsistent with the provisions of this Act is hereby repealed, modified or amended accordingly.

Section 41. Effectivity.— This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in any two (2) newspapers of general circulation in the Philippines.

Approved,

(Sgd) GLORIA MACAPAGAL-ARROYO
Speaker of the House of Representatives

(Sgd) VICENTE C. SOTTO III
President of the Senate

This Act which is a consolidation of Senate Bill No. 1558 and House Bill No. 8794 was passed by the Senate of the Philippines and the House of Representatives on February 6, 2019.

(Sgd) DANTE ROBERTO P. MALING
Acting Secretary General
House of Representatives

(Sgd.) MYRA MARIE D. VILLARICA
Secretary of the Senate 

(Sgd) RODRIGO ROA DUTERTE
President of the Philippines

Approved: April 17, 2019.

Source - 

https://lawphil.net/statutes/repacts/ra2019/ra_11313_2019.html

New ESTATE TAX rules under TRAIN LAW, effective 2018 - Atty. John Philip Siao

"The TRAIN Law changed the rate starting January 1, 2018 from the graduated rate in the table above to a single flat rate of 6 percent still based on the value of the Net Estate — which is the Gross Estate less the Allowable Deductions.

Other notable changes from the TRAIN Law relate to the Computation of the Net Estate & Deductions and Administrative Procedures.


In the matter of Computation of the Net Estate, the following are some notable points.

a. Deductions from the gross estate pertaining to actual funeral expenses or 5 percent of the gross estate, judicial expenses and medical expenses were removed

b. The amount of standard deduction was increased from P1 million to P5 million

c. Allowable deduction of the Family Home was increased from up to P1 million to a maximum of P10 million. The requirement of submitting a certification from the barangay captain of the locality has also been removed

d. Standard deduction amounting to P500,000 is now allowed but deductions for non-resident estates relating to losses, debt, expenses and taxes have been removed

e. The requirement to include in the estate tax return that part of the non-resident alien’s gross estate properties and assets not in the Philippines to be able to claim deductions has been removed

f. The threshold level for the gross value of the estate was increased from P2 million to P5 million in cases where the submission of a statement certified by a certified public accountant is required

While the above changes are significant in the sense that it rationalized the rate of the estate taxes and provided for more deductions that are more in keeping with the times, there are other equally significant changes brought by the TRAIN Law which relate to the procedural or administrative aspect of estate taxes.

Previously, when a person dies, their administrator, executor, or heirs must file a notice of death with the BIR within two months. In addition to that, the estate tax return and payment would have to be filed and paid within six months from death. Now, there is no more requirement of filing a notice of death, and the time to settle the filing of the return and payment has been extended to one year from the date of death, which is extendible by 30 days.

In the event that the estate has insufficient cash to pay for the estate tax and more time than the one year period would be needed to raise the funds from the assets of the deceased, the law also allows for payment of the estate taxes on installment basis for a period of two years, if the estate is settled extrajudicially, and not more than five years, if the estate is settled judicially, without penalty and interest. (Section 26, TRAIN Law and Revenue Regulations [RR] No. 12-2018, as amended by RR No. 8-2019)

It is also significant to mention that the TRAIN Law allowed the removal of the P20,000 withdrawal limit of money from the deceased’s bank account. Prior to the TRAIN Law, withdrawal in excess of the amount was allowed only upon submission of a certification issued by the BIR. At present, withdrawal of money from the deceased’s bank account may be made without limit for as long as a 6-percent tax is withheld by the bank and remitted to the BIR.

These changes are important in that it is expected that they would have the effect of spurring greater tax compliance as it makes the reporting, filing and settlement of the estate tax easier. It is believed that the lowering of the estate tax rate to 6 percent which is the same as the capital gains tax on transfers of property, removes the temptation from the taxpayer to make fictitious sales in preparation of death. The increases in deductions have also allowed the law to keep up with the times. The administrative and procedural changes such as doing away with the notice of death, extending the time to file the return and pay the estate taxes, allowing for an extension of payment on installments, and allowing the withdrawal of money from the deceased’s bank accounts immediately, are all good and practical changes that make compliance easier especially for the heirs and loved ones of one who has passed away, as they are expectedly still dealing with and grieving the loss of their loved ones.

Because of these changes, it would be reasonable to expect a higher degree of tax compliance and settlement of estates.

In closing, it is essential to point out that the Estate Tax Amnesty has been extended from the original deadline of June 14, 2021 to June 14, 2023. Accordingly, for estates of those who died on or before Dec. 31, 2017 and which have validly availed of the amnesty, the estate tax due would be 6 percent of the net estate without penalties. (Republic Act No. 11213, RR No. 6-2019, Republic Act No. 11569, and RR No. 17-2021)

(The author, Atty. John Philip C. Siao, is a practicing lawyer and Co-Managing Partner of Tiongco Siao Bello & Associates Law Offices, a Professor at the MLQU School of Law, and an Arbitrator of the Construction Industry Arbitration Commission of the Philippines. He may be contacted at jcs@tiongcosiaobellolaw.com. The views expressed in this article belong to the author alone.)"


Read more: https://business.inquirer.net/362117/death-and-taxes#ixzz7elOHWOPe

Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook