Blog Lecture No. 81: Amendment and Supplements

In this, my 12th year anniversary in practice, allow me to present a small lecture.

What is the law on amendment and supplemental pleadings?

It is governed by Rule 10 of the 1997 Revised Rules of Civil Procedure. It states:

RULE 10

Amended and Supplemental Pleadings
Section 1. Amendments in general. Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1)

Section 2. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a)

Section 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)

Section 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a)

Section 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

Section 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)

Section 7. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)

Section 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n)

Are these rules applicable in Congress or any other government agency which is not a court?

If these offices do not have specialized rules on the matter, the rules I stated above is applicable as a supplement.

But we have to take note of the Section 147 of the House Rules that state:

Section 147. Suppletory Provisions. – The parliamentary practices of the Philippine Assembly, the House of Representatives, the Senate of the Philippines and the Batasang Pambansa shall be suppletory to these rules.

What is the difference between an amendment and a supplement?

According to the rules, an amendment is a modification of an original. Hence, we are only referring to only one pleading and the amendment merely modifies this original pleading (or affidavit, or any other document).

Now a supplement, as the rules state, states transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. Simply put, a supplement adds to an original pleading (or affidavit).

So is an amended pleading considered a separate pleading?

Technically it is not because since it merely modifies an original pleading (or affidavit), there is no separate pleading to speak of.

How about a supplement?

Again, it is not technically because it merely adds to an original pleading. There is, again, no separate pleading to speak of.

But what is important in considering an amendment or a supplement?

Of course, the party that originally filed the pleading or the affidavit has to consent to such an addition or modification. Ideally, the supplement or amendment should be filed by the one that originally filed it.

Also, when an amendment or a supplement substantially changes the theory of the case, it may need the consent of the court, or the body that received it.

Happy 12th anniversary to me…

Blog Lecture No. 80: Pardon and Amnesty

Time for another blog lecture:

Why is pardon and amnesty important?

Because they are ways where criminal liability is extinguished. As Article 89 of the Revised Penal Code states:

Article 89. How criminal liability is totally extinguished. – Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and all its effects.

4. By absolute pardon.

5. By prescription of the crime.

6. By prescription of the penalty.

7. By the marriage of the offended woman, as provided in Article 344 of this Code.

So what is pardon? What are the kinds?

Pardon contains what it means. It basically means forgiveness, punishment lifted and the convict is set free.

There are two kinds of pardon, namely:

1. Absolute pardon- means unconditional pardon
2. Conditional pardon- as the term implies, forgiveness with some conditions attached.

An absolute pardon, does not automatically restore the convict to his full civil and political rights, by virtue of Article 36 of the Revised Penal Code, unless the pardon order expressly restores him to such rights. (People vs. Madaraong, 160 SCRA 153 [1988]).

A conditional pardon is essentially a contract between the convict and the government but it does not have effect until the convict accepts the conditions stated in the pardon. On the strength of such pardon, the convict is set free and enjoy liberty as long as he does not violate the conditions of such a pardon. Non-compliance with the conditions automatically revokes the pardon and the convict reverts to his previous situation, as if no pardon was given.

What is amnesty?

Amnesty is an act of grace by the Chief Executive and as a result, the criminal liability and all the effects are completely obliterated. But for this grant, the concurrence of congress is required.

What is the difference between amnesty and pardon?

Amnesty requires concurrence of the legislature while pardon is the exclusive prerogative of the President.

As a general rule, amnesty is given to a group of persons, usually for political offenses while pardon is granted to a particular convict, for a particular crime or offense.

Pardon is granted only after final judgment while amnesty is granted at any stage of the proceedings of the prosecution of the accused.

Was the former president given absolute or conditional pardon?

He was given an absolute pardon, in the sense that there are no conditions as to his release and his continued freedom. Further, the order expressly restored his civil and political rights.

How about the forfeiture cases? Isn’t that a condition of the pardon?

Arguably, no, as that pertains to the civil aspect of the offense. When we are dealing with the criminal aspect, particularly his incarceration, the pardon is absolute and unconditional.

What about the objections of the prosecution?

Basically, the prosecution cites Section 19, Article VII of the Constitution that states:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

But in my opinion, this may not apply because the pardon was for the crime of plunder and not for an impeachable offense, though the former president was impeached for the same acts complained about in the plunder case.

This, combined with the principle of interpreting laws in favor of the accused, weighs heavily against the prosecution’s argument.

Blog Lecture No. 79: Exemptions from Competitive Bidding

You may want to look into this previous blog lecture as it picks up from where it left off.

What are the exemptions to the general rule of public bidding provided by present laws?

More accurately, these are called Alternative Methods of Procurement.

Very good, wise guy. So what are these so-called alternative methods?

These are:

1. Limited Source Bidding
2. Direct Contracting
3. Repeat Order
4. Shopping
5. Negotiated Procurement

So what is limited source bidding?

This is otherwise known as Selective Bidding. It is a method of Procurement that involves direct invitation to bid by the government from a set of pre-selected suppliers or consultants with known experience and proven capability relative to the requirements of a particular contract.

When will this be applicable?

It applies to:

1) Procurement of highly specialized types of goods and consulting services which are known to be obtainable only from a limited number of sources.

For example, the government requires a specialized smart card or biometric reader that can be supplied by a limited number of vendors. Bidding will be limited to a small group.

2) Procurement of major plant components where it is deemed advantageous to limit the bidding to known eligible bidders in order to maintain an optimum and uniform level of quality and performance of the plant as a whole.

For example, an electric plant has a G.E. turbine. Of course, you will limit the bidders to those who can supply the compatible parts. Bear in mind, reference to brand names is not allowed in the terms of reference but this case is an exemption.

What is direct contracting?

It is otherwise known as Single Source Procurement. It is a method of Procurement that does not require elaborate Bidding Documents because the supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale, which offer may be accepted immediately or after some negotiations.

Simply put, there will be no formalities here like submission of a specific bid form or a strict documents required by our procurement law. The bidders will just submit the accustomed forms like price quotes or invoices, to be accepted quickly or after some negotiations.

When is this applicable?

It applies to the following:

1. Procurement of Goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item.

2. When the Procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract.

3. Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.

What is repeat order?

It is a method of Procurement that involves a direct Procurement of Goods from the previous winning bidder, whenever there is a need to replenish Goods procured under a contract previously awarded through Competitive Bidding.

Here, the previous winning bidder gets to win a second round of procurement be default. No new bidding, no new process. The previous winner get to supply goods or services anew.

What are the conditions for a repeat order?

These are:

1. The unit price must be equal to or lower than that provided in the original contract;

2. The repeat order does not result in splitting of requisitions or purchase orders;

Aside from the obvious, what is shopping?

It is a method of Procurement whereby the Procuring Entity simply requests for the submission of price quotations for readily available off-the-shelf Goods or ordinary/regular equipment to be procured directly from suppliers of known qualification.

Ordinary or regular office supplies include paper, pencils, pens, clips, etc.

Under what circumstances can shopping be allowed?

It can be resorted to in any of the following circumstances:

1. When there is an unforeseen contingency requiring immediate purchase: Provided, however, That the amount shall not exceed Fifty thousand pesos (P50,000); or

2. Procurement of ordinary or regular office supplies and equipment not available in the Procurement Service involving an amount not exceeding Two hundred fifty thousand pesos (P250,000): Provided, however, That the Procurement does not result in Splitting of Contracts: Provided, further, That at least three (3) price quotations from bona fide suppliers shall be obtained.

What is negotiated procurement?

It is a method of Procurement that may be resorted under the extraordinary circumstances, whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant.

When is this applicable?

It can be resorted to in the following cases:

1. After two failed competitive biddings.

When the government went through two bidding processes but both failed for one reason or another, it can then go through negotiated procurement.

2. In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities.

Take note of the key words like imminent, state of calamity, time is of the essence, etc.

3. Take-over of contracts, which have been rescinded or terminated for causes provided for in the contract and existing laws, where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities

For example, a road contractor repairing a major road fails to complete the job for one reason or another and gets terminated. The government can negotiate with another without competitive bidding to save time as the road is urgently needed.

4. Where the subject contract is adjacent or contiguous to an on-going infrastructure project

5. Purchases of goods from another agency of the Government

6. In the case of individual consultants hired to do work that is highly technical or proprietary; or primarily confidential or policy determining, where trust and confidence are the primary consideration for the hiring of the consultant

7. When the procurement involves major defense equipment for use by the AFP and the Secretary of National Defense has determined that the interests of the country shall be protected by negotiating directly with an agency or instrumentality of another country

8. Procurement of real estate since it is under another law

9. Those under the build, operate and transfer scheme or any of its variations, since it will be the BOT law will govern.

10. In some bilateral loans, a particular contractor has already been identified in the grant agreement with the foreign funding institution, the procurement guidelines of the foreign creditor shall apply and not the general rule of competitive bidding.

Let’s wait for the next hearing to make another lecture, if applicable.

Blog Lecture No. 78: Weight and Sufficiency of Evidence

Let’s get right to it shall we?

What is the standard of evidence needed to win in a civil case?

According to Section 1, Rule 133 of the Rules of Court, “In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. “

What is preponderance of evidence?

In the simplest terms, preponderance of evidence is “where there is more weight or weightier evidence on a particular issue lies.” The rules define it as superior weight of evidence on the issues involved lies.

Here is where you can conjure up the weighing scale of Lady Justice. While she is blind, she will rule in favor the litigant who presented to the weightier evidence on the issue at at. She will rule on the party who proved his/her point more.

For this, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial.

Does the court rule in favor of a party who gave more evidence or presented more witnesses?

Not necessarily. Quality and not quantity rules.

The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (Section 1, Rule 133, Rules of Court).

You may have produced more evidence, but were all demolished by your counterpart as irrelevant, immaterial or incredible, you will still lose in a civil case. You may have more witnesses but most of them are convicted perjurers or have questionable backgrounds or motives, or did not actually the events they were testifying on. In such a case, the other party would have presented more preponderant evidence.

What about in criminal cases?

In criminal cases the standard is proof beyond reasonable doubt.

What is that standard?

According to Section 2, Rule 133 of the Rules of Court, “Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.”

Proof beyond reasonable doubt does not mean absolute or 100% certainty of guilt. If the witnesses or the documentary (or object evidence) produces a conviction in an unbiased mind, that is enough as proof beyond reasonable doubt.

Here, the judge’s experience and lack of bias is essential. So we really have to get very good judges for criminal cases.

If you can’t produce witnesses, documents or object that do not directly prove that a person actually committed a crime, can you still prove someone’s guilt beyond reasonable doubt?

Yes. Circumstantial evidence can still produce a conviction of guilt beyond reasonable doubt. According to Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for conviction if:(

a) There is more than one circumstances;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Can you give an example?

Sure. In an adultery case, you need not produce an eyewitness that saw accused couple in the throws of passion. You can prove the following:

1. They are involved in a relationship, through love letters, eyewitness accounts of them going to social functions together or seen frequently on dates, and publicly displaying their affection for each other.

2. On a certain night, they checked into a motel/hotel, and in hand, just the two of them and not as part of a group.

3. There, they spent the night inside the motel and never left until a significant lapse of time.

Here, an unbiased mind (and not the mind of the aggrieved husband) would reasonably conclude beyond any reasonable doubt that the accused persons committed adultery even though you did not see them doing the dastardly deed. One does not check into a motel or a hotel together hand in hand to hold a private bible study session, you know. The conclusion that they had sexual intercourse is pretty reasonable given the circumstances and fact already proven.

How about in administrative cases or cases before quasi-judicial bodies?

The standard of proof in administrative cases is less, only substantial evidence.

What is that standard of substantial evidence?

It is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

So the key terms is relevance and reasonable. For as long as there is some evidence that tend to prove the facts, that is enough as substantial evidence.

Can you give an example?

For government employees, failure to properly account for amounts entrusted to them may lead reasonable mind to conclude they embezzled them, enough to impose sanctions like suspension or dismissal from service. If course, this fact may or may not be enough to land them in jail because the proof required to do that is beyond reasonable doubt.

Blog Lecture No. 77: Anti-Hazing Law

Been a long time, class.

Can you give me the full text of the Anti-Hazing Law?

Sure.

REPUBLIC ACT NO. 8049

AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, AND OTHER ORGANIZATIONS AND PROVIDING PENALTIES THEREFOR

Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.

The term “organization” shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen’s Military Training and Citizen’s Army Training. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved ny the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purposes of this Act.

Sec. 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites.

Sec. 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.

Sec. 4. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:

1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.

2. The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind.

3. The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.

4. The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than ninety (90) days.

5. The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days.

6. The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of ten (10) days or more, or that the injury sustained shall require medical assistance for the same period.

7. The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from one (1) to nine (9) days, or that the injury sustained shall require medical assistance for the same period.

8. The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.

The responsible officials of the school or of the police, military or citizen’s army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances:

(a) when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join;

(b) when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting;

(c) when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation;

(d) when the hazing is committed outside of the school or institution; or

(e) when the victim is below twelve (12) years of age at the time of the hazing.

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.

The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority’s adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.

The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.

Any person charged under this provision shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.

This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein.

Sec. 5. If any provision or part of this Act is declared invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective.

Sec. 6. All laws, orders, rules or regulations which are inconsistent with or contrary to the provisions of this Act are hereby amended or repealed accordingly.

Sec. 7. This Act shall take effect fifteen (15) calendar days after its publication in at least two (2) national newspapers of general circulation.

 

What is hazing under the law?

It involves putting a new recruit to an organization to embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury as an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization.

For purposes of this act, what does the term “organization” include?

The term “organization” shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen’s Military Training and Citizen’s Army Training.

What is not included in hazing?

The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purposes of this Act.

(Mostly because this are pretty standard and there is no hint of secrecy here.)

What is the procedure if initiation rites are to be legal?

Briefly:

1. Prior notice to authorities
2. List of activities
3. Not longer than 3 days
4. List of participants
5. Undertaking not to use violence
6. Presence of at least 2 school or organization representatives to make sure

Who are to be considered as accomplices if something wrong happens in these rites?

1. Owner of the place where the rites are held, if he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

2. School officials, including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring

Who are considered principals along with those who actually committed the crime?

1. If the owner is one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

2. The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals.

3. A fraternity or sorority’s adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.

4. The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.

Is the mitigating circumstance of no intent to commit so grave a wrong available in this crime?

No. But express provision of this law. Also, this law is mala prohibita so there is no need to prove criminal intent.

What are the penalties?

1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.

2. The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind.

3. The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.

4. The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than ninety (90) days.

5. The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days.

6. The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of ten (10) days or more, or that the injury sustained shall require medical assistance for the same period.

7. The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from one (1) to nine (9) days, or that the injury sustained shall require medical assistance for the same period.

8. The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.

Can this law be enforced?

Your guess is as good as mine.

Blog Lecture No. 76: Ostentatious Display of Wealth

Just a quick lecture. There’s no recitation involved even.

Like you, I’m getting sickened by the great wealth divide in our dear country, which seems to get wider by the day. There are people who enjoy decadent lifestyles in the face of increasing poverty. Only a few people live in lavish mansions in the face of people being forcibly evicted and herded off like animals.

We see on the television lavish weddings and parties of celebrities in the face of growing hunger.

And we see some of these gatherings involving our very dear government officials.

So let’s do a survey on the “austerity laws” here in the Philippines.

One of the first things a law student learns is this provision in the Civil Code of the Philippines:

Article 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution.

But as the law states, such extravagance can be stopped by a court order initiated by a case filed by a government or private charitable institution. I personally think a taxpayer should be able to file one of these cases but with the increased filing fees, I don’t think it will be feasible.

For our dear government officials, we have this Constitutional provision (Article XI):

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

This principle is likewise echoed in Section 4 (h) of Republic Act No. 6713:

Section 4. Norms of Conduct of Public Officials and Employees. – (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:

xxx

(h) Simple living. – Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

The operative phrase there is “lead modest lives.” But we see a lot of them in mortally sinful gaz-guzzling cars going to lavish parties and living decadent lifestyles.

Some pubic officials (especially the elective ones) may argue that they were already rich to begin with and as such, they are simply living the lifestyle appropriate to their positions and income. But these public officials should lead by example by living austere lives.

Of course there are remedies to this like initiating a lifestyle check. The Ombudsman now allows for online filing of complaints (or requests for assistance). But of course, there must be some follow-through.

And that, my friends, depends on you.

Dangerous Blogging Mentalities

First off, let me put out a disclaimer. This is merely my opinion only. You may agree or disagree with me. You may argue with me or try to convince me otherwise, you’re pretty much welcome to it. I may even be convinced, no problem. That’s what blogging is about. And that’s what I love about it.

I’m becoming increasingly afraid of the direction blogging is going. As you have known, I entered into the world of blogging (I really hate the word “blogosphere,” sorry) for personal reasons and a chance to practice my writing. But some, have other intentions. You notice the symptoms:

1. The “keyword” mentality

Yes, I know a lot of people do make their living off blogging (and living well, if I may add, judging from the toys they have acquired) and I do not want to deprive them of their means to feed their family, or to buy their toys.

But do you really have to sacrifice valid, credible and quotable content for the sake of sneaking in those crucial SEO keywords you would get from Google Zeitgeist? Sound too much of a compromise to me.

Sorry, I still believe that while you may get hits for “keyword blogging,” credible, readable and entertaining content will maintain those hits, and maintain the revenue stream. (And for me personally, the revenue is secondary, maybe because I still have a day job).

2. The MLM mentality

For those of your who do not know, “MLM” stands for multi-level marketing.

I feel that the Philippine Blogging Scene has shades of this. The first one to bring in the concept of links gets to be on the top of the pyramid and all blogs here funnel all their links to it, and a piece of all the revenue from all the blog’s “downlines.”

There’s really nothing wrong with this, really. But again, it does not matter what kind of blog that top one is. The search engines simply judge this an “important” blog and hence puts it on the top of the food chain. And that’s wrong on multiple levels.

3. The “clique” mentality

I’ve met a lot of these people, both online and offline (never mind their names because I may hurt their “feelings,” but then again, I think they don’t care anyway). Does not matter what kind of blogger we are when we meet them, they’re simply snooty and elitist (for me, the ones I hate the most, well not the most, at least they’re snooty and elitist up front. It’s the “plastics” that I hate the most).

But we exist and you owe some of your revenue from us little guys. You are on the top of the foodchain because of the links we give you.

So give at least the time of day and not treat us as organisms lower that paramecia. Like it or not, you owe us.

But make no mistake, I met a lot of wonderful, friendly and credible people behind the blogs and I still welcome the chance to meet all kinds of people I meet on the net. I’m not referring to them, of course.

4. The “journalist” mentality

Yes, I know bloggers are getting more and more respect and are increasingly shaping public opinion. But I tend to agree with Adel Gabot on this one (read the latest Mobile Philippines issue). Bloggers are not journalists. And blogs are not columns or print articles. We have to know our place.

Yes, I know the old “anti-journalist” argument of bloggers of being beholden to the higher ups or higher interests. But just the same, I don’t believe anything I find on the net. And so should you.

Well, that’s it. Again, feel free to disagree. But discussions are always helpful.

Blog Lecture No. 75: Election Offenses (Part II: Vote Buying)

Let’s tackle one of the most obvious election offense: Vote Buying.

How does our election law define vote buying and vote selling?

1. Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

2. Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.

Who are liable?

Those who buy votes and those who sell them.

And it is not limited to persons. It also covers associations, groups, corporations or communities who does the same act.

What are the elements of the offense?

You remember in any contract there are the three elements. Here, it’s similar:

1. Subject — the actors, the buyer and the seller (as stated above)

2. Object — the vote (for or against a particular candidate or party list; or in the case of “negative vote buying/selling” not to vote at all)

3. Consideration — the “payment” to vote (or not to vote as the case maybe)

This is not limited to actual payment. Even a promise of payment is sufficient.

Payment is likewise not limited to money. It includes anything of value, including employment, franchises, grants or even to shoulder an expenditure for the vote seller.

What are the consequences of this offense?

Aside from being an election offense that carries criminal sanctions, it can be used to disqualify the candidate…

Blog Lecture No. 75: Election Offenses (Part I)

This will be split into parts because looking at the law, I now realize how many offenses can be committed during an election.

So let’s start.

What are the election offenses/ prohibited acts related to elections?

Article 261 of the Omnibus Election Code states the following (and prepare for yourself, this will be long)…

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:

1. Vote-buying and vote-selling.

1. Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

2. Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.

2. Conspiracy to bribe voters. – Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it.

3. Wagering upon result of election. – Any person who bets or wagers upon the outcome of, or any contingency connected with an election. Any money or thing of value or deposit of money or thing of value situated anywhere in the Philippines put as such bet or wager shall be forfeited to the government.

4. Coercion of subordinates.

1. Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates.

2. Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish be reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates.

5. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. – Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.

6. Coercion of election officials and employees. – Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties.

7. Appointment of new employees, creation of new position, promotion, or giving salary increases. – During the period of forty-five days before a regular election and thirty days before a special election,

1. any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

2. Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.

8. Transfer of officers and employees in the civil service. – Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.

9. Intervention of public officers and employees. – Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

10. Undue influence. – It is unlawful for any person to promise any office or employment, public or private, or to make or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations.

11. Unlawful electioneering. – It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof.

12. Prohibition against dismissal of employees, laborers, or tenants. – No employee or laborer shall be dismissed, nor a tenant be ejected from his landholdings for refusing or failing to vote for any candidate of his employer or landowner. Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be restored to the aggrieved party upon application to the proper court.

13. Appointment or use of special policemen, special agents, confidential agents or the like. – During the campaign period, on the day before and on election day, any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same.

At the start of the aforementioned period, the barangay chairman, municipal mayor, city mayor, provincial governor, or any appointing authority shall submit to the Commission a complete list of all special policemen, special agents, confidential agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require.

14. Illegal release of prisoners before and after election. – The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their care. Detention prisoners must be categorized as such.

15. Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. – Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity.

16. Deadly weapons. – Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law.

17. Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables.

18. Use of armored land, water or air craft. – Any person who uses during the campaign period, on the day before and on election day, any armored land, water or air craft, provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of cannons, machine guns and other similar high caliber firearms, including military type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodelled: Provided, That banking or financial institutions and all business firms may use not more than two armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion or other valuables in connection with their business from and to their place of business, upon previous authority of the Commission.

19. Wearing of uniforms and bearing arms. – During the campaign period, on the day before and on election day, any member of security or police organization of government agencies, commissions, councils, bureaus, offices, or government-owned or controlled corporations, or privately-owned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work: Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices: Provided, further, That in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application.

During the same period, and ending thirty days thereafter any member of the Armed Forces of the Philippines, special, forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of members of para-military units, unless:

1. the President of the Philippines shall have given previous authority therefor, and the Commission notified thereof in writing, or

2. the Commission authorizes him to do so, which authority it shall give only when necessary to assist it in maintaining free, orderly and honest elections, and only after notice and hearing. All personnel of the Armed Forces authorized by the President or the Commission to bear arms or wear their uniforms outside their camps and all police and peace officers shall bear their true name, rank and serial number, if any, stitched in block letters on a white background on the left breast of their uniform, in letters and numbers of a clearly legible design at least two centimeters tall, which shall at all times remain visible and uncovered.

During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation of firearms of any member or members of the Armed Forces of the Philippines, police forces, home defense forces, barangay self-defense units, and all other para-military units that now exist, or which may hereafter be organized, or any member or members of the security or police organization, government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations and other subsidiaries, or of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions.

20. Policemen and provincial guards acting as bodyguards or security guards. – During the campaign period, on the day before and on election day, any member of the city or municipal police force, any provincial or sub-provincial guard, any member of the Armed Forces of the Philippines, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who acts as bodyguard or security guard of any public official, candidate or any other person, and any of the latter who utilizes the services of the former as bodyguard or security guard: Provided, That, after due notice and hearing, when the life and security of a candidate is in jeopardy, the Commission is empowered to assign at the candidate’s choice, any member of the Philippine Constabulary or the police force of any municipality within the province to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate: Provided, however, That when the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the Philippine Constabulary or the local police force to act as bodyguard or security guard of the candidate, subject to confirmation or revocation.

21. Organization or maintenance of reaction forces, strike forces, or other similar forces. – Any person who organizes or maintains a reaction force, strike force or similar force during the election period.

The heads of all reaction forces, strike forces, or similar forces shall, not later than forty-five days before the election, submit to the Commission a complete list of all members thereof with such particulars as the Commission may require.

22. Prohibition against release, disbursement or expenditure of public funds. – Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:

1. Any and all kinds of public works, except the following:

1. Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said period of forty-five days;

2. Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called “takay” or “paquiao” system shall not be considered as work by contract;

3. Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and

4. Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.

This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them.

2. The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and

3. The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing.

23. Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. – During the period of forty-five days preceding a regular election and thirty days before a special election, any person who:

1. undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or

2. issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

24. Suspension of elective provincial, city, municipal or barangay officer. – The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the “Anti-Graft and Corrupt Practices Act” in relation to the suspension and removal of elective officials; in which case the provisions of this section shall be inapplicable.

25. On Registration of Voters:

1. Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote.

2. Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration.

3. Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter’s affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records.

4. Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications.

5. Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.

6. Any person who registers in substitution for another whether with or without the latter’s knowledge or consent.

7. Any person who tampers with or changes without authority any data or entry in any voter’s application for registration.

8. Any person who delays, hinders or obstruct another from registering.

9. Any person who falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter’s registration as a voter.

10. Any person who uses the voter’s affidavit of another for the purpose of voting, whether or not he actually succeeds in voting.

11. Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter’s application, except upon lawful order of the Commission, or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125 hereof.

12. Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place.

13. Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter’s affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter’s affidavit of another and the latter are both members of the same family.

14. Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter’s affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter’s affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof.

15. Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters.

16. Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission.

17. Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place.

26. On voting:

1. Any person who fails to cast his vote without justifiable excuse.

2. Any person who votes more than once in the same election, or who, not being a registered voter, votes in an election.

3. Any person who votes in substitution for another whether with or without the latter’s knowledge and/or consent.

4. Any person who, not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of another who is not illiterate or physically disabled, with or without the latter’s knowledge and/or consent.

5. Any person who avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted.

6. Any voter who, in the course of voting, uses a ballot other than the one given by the board of election inspectors or has in his possession more than one official ballot.

7. Any person who places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted.

8. Any member of the board of election inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot.

9. Any member of the board of election inspectors charged with the duty of tallying the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman.

10. Any member of a board of election inspectors who has made possible the casting of more votes than there are registered voters.

11. Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election.

12. Any person who, without legal authority, destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election.

13. Any person having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the Commission or who, through his negligence, enables any person to commit any of the aforementioned acts, or takes away said ballot box from his custody.

14. Any member of the board of election inspectors who knowingly uses ballots other than the official ballots, except in those cases where the use of emergency ballots is authorized.

15. Any public official who neglects or fails to properly preserve or account for any ballot box, documents and forms received by him and kept under his custody.

16. Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot.

17. Any person who, without authority, transfers the location of a polling place.

18. Any person who, without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used.

19. Any person who, without authority, keeps, uses or carries out or causes to be kept, used or carried out, any official ballot or election returns or printed proof thereof, type-form mould, electro-type printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns.

20. Any official or employee of any printing establishment or of the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or election returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission.

21. Any person who, through any act, means or device, violates the integrity of any official ballot or election returns before or after they are used in the election.

22. Any person who removes, tears, defaces or destroys any certified list of candidates posted inside the voting booths during the hours of voting.

23. Any person who holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held.

24. Any person who deliberately blurs his fingerprint in the voting record.

27. On Canvassing:

1. Any chairman of the board of canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board.

2. Any member of the board of canvassers who proceeds with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the Commission.

3. Any member of the board of canvassers who proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board.

4. Any member of the board of canvassers who, without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns.

28. Common to all boards of election inspectors and boards of canvassers:

1. Any member of any board of election inspectors or board of canvassers who deliberately absents himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions.

2. Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body.

3. Any person who, being ineligible for appointment as member of any board of election inspectors or board of canvassers, accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any of public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible.

4. Any person who, in the presence or within the hearing of any board of election inspectors or board of canvassers during any of its meetings, conducts himself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally.

5. Any public official or person acting in his behalf who relieves any member of any board of election inspectors or board of canvassers or who changes or causes the change of the assignments of any member of said board of election inspectors or board of canvassers without authority of the Commission.

29. On candidacy and campaign:

1. Any political party which holds political conventions or meetings to nominate its official candidates earlier that the period fixed in this Code.

2. Any person who abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the Commission.

3. Any person who misleads the board of election inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate.

4. Any person who, being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation, terrorism or coercion, causes or compels the commission of said act.

5. Any person who, by any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program.

6. Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof.

30. Other prohibitions:

1. Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly certified by the Ministry of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph.

2. Any person who opens in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes.

3. Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports.

4. Refusal to carry election mail matter. – Any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including government-owned or controlled postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise.

5. Prohibition against discrimination in the sale of air time. – Any person who operates a radio or television station who without justifiable cause discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of the franchise.

Can you break them down?

Actually, it’s hard to break them down… I’ll probably do it later. I wanted to put them all first so you may get to digest them. Think of it as… homework…

Blog Lecture No. 74: Campaigning Children

Watching the news this morning, I was appalled when the minor children of a senatorial candidate was being “employed” to campaign for their father. This is the reason for this blog lecture. Call it my Labor Day lecture if you want…

Give a law protecting children against child abuse, exploitation and discrimination?

It is Republic Act No. 7610, otherwise known as the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act.”

What does this law provide as regards putting children to work?

Under Section 3 (c) (2) of that law, putting children to work under conditions hazardous to life, safety and normal which unduly interfere with their normal development, qualifies as a circumstance which gravely threaten or endanger the survival and normal development of children, which, in turn, is punishable under this act.

Putting a minor child on the campaign trail is arguably putting a child to work under illegal conditions, since the campaign trail is hazardous to the child’s life and safety. A campaign activity is no place for a child, even if temporary.

What else?

Under Section 12 of the same law:

Section 12. Employment of Children. – Children below fifteen (15) years of age may be employed except:

(1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed: Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or

(2) When a child’s employment or participation in public & entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract concluded by the child’s parent or guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, That the following requirements in all instances are strictly complied with:

(a) The employer shall ensure the protection, health, safety and morals of the child;

(b) the employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and;

(c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirement.

The Department of Labor Employment shall promulgate rules and regulations necessary for the effective implementation of this Section.

So even if the candidate/parent can argue that their children qualifies under the first exemption, he should have secured prior clearance (or a work permit) from the Department of Labor and Employment, before putting his children to work for his campaign.

So what does all of these mean?

Somebody should be calling Bantay Bata (Child Watch) 163…