Tuesday, November 29, 2005
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Law School Days: Second Semester, Second Year

Subjects/Units/Teachers:

1. Civil Procedure- 4 units; Justice Lorenzo Relova
2. Administrative Law- 2 units; Atty. Emmanuel De Dios
3. Taxation I- 3 units; Atty. Leonides Balmeo
4. Corporation Law- 4 units; Dean Cesar Villanueva
5. Public International Law- 2 units; Atty. Mel Sta. Maria
6. Theology and the Law- 2 units; The late Fr. Vitaliano Gorospe, S.J.
7. Agency- 1 unit; Atty. Jose Quimson

General Highlights:

1. More of Dean Villanueva's "mind-boggling" lectures/recitations.

2. You only get to recite once in Atty. Quimson's class so make it count. I learned this the hard way.

3. Atty. Mel Sta. Maria's "metanoia" from a terror to a friendly teacher will manifest itself here.

4. Atty. De Dios had this "hot seat" approach to his classes. This person designated in the hot seat would answer for people who could not answer or answered wrong. First, he would ask for volunteers. If there are non, he will designate one by drawing. I forgot the advantage or disadvantage (grade-wise) of being in the hot seat.

5. Our Theolgy and the Law class was basically a trip to Mt. Banahaw. It was a very good spritual experience but really did not have any relationship with law school life.

6. The accountants had a field day in taxation. The rest of us didn't.

Personal Highlights:

1. This was the semester with the most effect on my fledging love life. My girlfriend would setlle back in Bacolod. Imagine a long distance relationship without text messages, instant messages, no time to write snail mail and very limited long-distance phone calls. Now you'd understand why this relationship would eventually be doomed.

2. Suffered my first bout with high blood pressure. Shot up to 160/120. This happened when I got the news my girlfriend's decision to go back to Bacolod. My mother took my to my present cardiologist where he put me on 24-hour blood pressure monitoring. I even wore that darn contraption to school.

3. Since this was the height of the power crisis, they waived the dress code. That was the only good point of that semester, aside from my start in the law school choir.

4. Result: another inclusion in the Dean's List.

Law School Days: Second Semester, Second Year

Subjects/Units/Teachers:

1. Civil Procedure- 4 units; Justice Lorenzo Relova
2. Administrative Law- 2 units; Atty. Emmanuel De Dios
3. Taxation I- 3 units; Atty. Leonides Balmeo
4. Corporation Law- 4 units; Dean Cesar Villanueva
5. Public International Law- 2 units; Atty. Mel Sta. Maria
6. Theology and the Law- 2 units; The late Fr. Vitaliano Gorospe, S.J.
7. Agency- 1 unit; Atty. Jose Quimson

General Highlights:

1. More of Dean Villanueva's "mind-boggling" lectures/recitations.

2. You only get to recite once in Atty. Quimson's class so make it count. I learned this the hard way.

3. Atty. Mel Sta. Maria's "metanoia" from a terror to a friendly teacher will manifest itself here.

4. Atty. De Dios had this "hot seat" approach to his classes. This person designated in the hot seat would answer for people who could not answer or answered wrong. First, he would ask for volunteers. If there are non, he will designate one by drawing. I forgot the advantage or disadvantage (grade-wise) of being in the hot seat.

5. Our Theolgy and the Law class was basically a trip to Mt. Banahaw. It was a very good spritual experience but really did not have any relationship with law school life.

6. The accountants had a field day in taxation. The rest of us didn't.

Personal Highlights:

1. This was the semester with the most effect on my fledging love life. My girlfriend would setlle back in Bacolod. Imagine a long distance relationship without text messages, instant messages, no time to write snail mail and very limited long-distance phone calls. Now you'd understand why this relationship would eventually be doomed.

2. Suffered my first bout with high blood pressure. Shot up to 160/120. This happened when I got the news my girlfriend's decision to go back to Bacolod. My mother took my to my present cardiologist where he put me on 24-hour blood pressure monitoring. I even wore that darn contraption to school.

3. Since this was the height of the power crisis, they waived the dress code. That was the only good point of that semester, aside from my start in the law school choir.

4. Result: another inclusion in the Dean's List.

Monday, November 28, 2005
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Pressure


"It's just the one thing I wonder about.

What thing?


Pressure.

It changes everything. Pressure. Some people, you squeeze them, they focus.

Others fold.


Can you summon your talent at will?
Can you deliver on a deadline?

Can you sleep at night?


When do we talk about money?"
- Kevin Lomax and John Milton dialogue
From The Devil's Advocate grabbed from this site
Actually got a lot of work done today. Major work for a hearing tomorrow. Finally out of the rut, professionally speaking.

Still gloomy on the personal and financial front, though. But hey, life must go on. Those things just had to be done, I guess.

Maybe, I'll be back to regular programing tomorrow.

Maybe.

Sunday, November 27, 2005
This day in history from:

Timing

Some things I learned today about timing:

1. You don't use fertilizers in the summer because it's harvest time.

2. You should resign your post the moment you see something wrong or before some wrong happens. Resigning at any other time dilutes your credibility.

3. Time your exits perfectly, lest you be accused of hiding something or be held holding the bag.

Sorry for the short post. Still not in the mood... still bad timing...

Saturday, November 26, 2005
This day in history from:

Relieved... but still dissappointed

Still disappointed by the way everything is turning out, on both the personal and "national" fronts.

But on the personal level, Bea and I went to her school today to pick up her report card. The grades, more or less, stayed the same. Went up in some subjects, went down in others. Still relieved because at least, she still above-average and not on remedial. I know she has the ability but she lacks focus (which is a lot to ask from her, considering her age and what's she has been through). Hey, I'm not blaming her. It's just a thought.

Still waiting for the day that may not come....

I actually have a lot of things to do but feeling a little lethargic. We have no plans for this long weekend, except maybe catch up on paperwork. Bea has a lot of studying to do also.

I was planning two things to blog about: the second semester of my second year in law school and probably a blog-lecture on immunity. But that may be possible if I get out of this depression/dry/lethargic spell.

Anyway, I have to go. It's a Saturday and there's choir. Finished my video game (a very rare occurrence). So I guess it's the proverbial nose back to the grindstone tomorrow and the day after that.

Friday, November 25, 2005
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Disappointed...

Could not bear to blog yesterday because I was disappointed.

Disappointed in various ways:

1. Disappointed because that so-called "big day" never came. I wasted an entire week waiting for it, only to turn out that I was just waiting for Godot.

2. Disappointed at Garci for his insincerity. He knew all along he was wanted by the Congressional committees. He could not even question the very process that he now claims he was informed about. He cannot claim to have not have watched television or not have even owned a cellular phone. His face is plastered all over television, newspapers and even blogs.

We Filipinos have this belief that if you don't say anything or evade an issue, you have something to hide. His silence has said a lot for him simply because that was the only thing we had.

Also, had he been truly sincere in claiming innocence, he would have defended himself at the very first instance. His belated reaction to all of what happened reeks of afterthough...

Of course he can hide in technicalities, just as he physically hid himself these past months. The bottom line for a subpoena is basic due process, so the one being called knows that he is being called. He simply cannot sincerely claim ignorance of what has happened to this country these past few months, unless he was in a coma for the past few months.

3. Disappointed that it's Christmas and funds have not come in yet. Kiss that iPod goodbye...

So I did the escapist route yesterday.

No, I did not drink a single drop of a favorite German beverage. I don't drink alone anymore (I used to a lot, how pathetic!). I just played this particular video game all day.

Have to go now.

Wednesday, November 23, 2005
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How Convenient!

Dana Carvey's beloved persona, the Church Lady from Saturday Night Live

Well isn't that special?

Garci returning and willing to talk only if all the persons involved (including opposition people) are investigated as well?

The timing is sooooooo convenient.

Everyone else gets the heat but the main character involved gets away because the impeachment is over and immunity has set in?

Life can be so unfair!

Tuesday, November 22, 2005
This day in history from:

Nothing...

My supposed-to-be-big day fizzled out. It's rescheduled to tomorrow.

So I just bought component video cables for the new TV and home theatre system and did some more tweaking. Now I learned the difference between S-Video (the cable I used yesterday) and Component Video. Since both the new TV and the home theatre system has component video capability, I decided to give it a go.

When I finished, I watched some DVDs (all legal, of course) to test it. It was a good decision.

Getting a headache now.

Wanted to blog about recent events, especially the so-called return of Garci from somewhere is was not supposed to gave gone in the first place. But the headache is holding me back... It's futile to blog now, just as it is futile to rant about his alleged misdeeds.

Maybe later...

Monday, November 21, 2005
This day in history from:

Setting Up

Just finished setting up my mom's home theatre system and I'm a little tired.

But I had a meeting that morning (of course, I had to work, you know). Anyway, they delivered the unit at around 2:00 p.m. The delivery boys asked if I want to call the dealer to have the thing set up but I declined. Setting the thing up is part of the fun.

There's a bonus. Since the home theatre system has an AM/FM tuner, I got my mom's old mini-component stereo. Now I don't have to buy two things (a home theatre system and a CD player/mini-component for my room) and the only thing's missing in the picture is my future iPod.

I'll blog later because I need to rest. I have a big day tomorrow.

Sunday, November 20, 2005
This day in history from:

Display Units

As I told you yesterday, I went to an appliance store with my mother yesterday so she could purchase the big-screen television she has wanted to buy since a year ago.

Don't get me wrong. Unlike me, she can afford to buy whatever she wants. And she has way more discipline than I have when it comes to delaying gratification.

After making comparisons with other brands, we decided to stick with the TV we bought since it has the best picture quality and has a reputation for longevity, though the other brands have a lot of freebies. In fact, another brand offered both a home theatre and another 29" TV if we bought it.

The TV we bought had a promo where you add P5,000.00 and you get a home theatre unit worth P20,000.00. My mom decided to avail of that, too.

We made a substantial deposit (more than half) and the problem was, a brand-new unit would only be available on the first week of December.

While we could wait that long, they were offering us the display unit. They took it out of the box for a week and but never turned on, as they claimed.

Hesitating, we jokingly implied that we would look at another appliance store there to see if they have an available unit. They took it seriously.

Of course they don't want let the sale go. So they made an offer we could not possibly refuse: accept the display unit and and home theatre is free.

They'll deliver the thing tomorrow afternoon. Good thing I only have a short meeting tomorrow so I can receive it and spend the rest of the day setting it up. My mother already moved stuff around her room to acommodate it.

Saturday, November 19, 2005
This day in history from:

For this Saturday...

This is the plan:

1. Play a lot of PS2 games I recently acquired;
2. Grocery shopping;
3. Help my mom buy the big screen TV she always wanted;
4. Choir; and
5. Watch Bukas-Palad's God of Silence concert (or what's left of it) after the mass.

There's an amusing story about that TV but I'll just tell you that tomorrow.

Time to shower before going to church...

Friday, November 18, 2005
This day in history from:

Can Sony/BMG get away with its rootkit in the Philippines?

Please check out my latest Pinoy.Tech.Blog entry where I analyze the Sony/BMG end user license agreement ("EULA") on its controversial extended copy protection (or "XCP") software.

Do check it out.

Oh and BTW, I also like to refer you to Borcee's entry involving an incident that happened to us yesterday.

Thursday, November 17, 2005
This day in history from:

To buy or not to buy?

For the coming holidays, I "may" have just enough disposable "resources" to get my hands on an iPod (actually, whatever iPod model I want, and that includes the top-of-the-line 60Gb iPod Video), which is an unusual but very pleasant situation.

But I'm still deciding whether to buy one or not. Do I really need it? Where will I use it? Will it have actual value/use or will it be just for status? Don't want to be labeled a tech poseur, you know... Will I use it in my biking or will it motivate me to get some exercise?

If at all I will buy one, what model will I buy? The iPod has to be synched with my iTunes library so I may not be able to afford a 60Gb iPod Video, memory wise that is. Linsday only has an 80Gb hard disk. This means, I could not completely fill up that iPod, because I would not have enough space in Lindsay (she has about 50Gb left).

As of now, I have narrowed down the list to the 4Gb iPod Nano, the 30Gb or 60Gb iPod Video. But the price difference between the Nano and the Video is already bordering on insignificant. So it may come down to a choice between the two iPod Videos, the price difference of which is likewise bordering on insignificant...

Oh, I wish I had more happy problems like this... for a change.

Do you have any suggestions?

P.S. Will it be a black one or a white one?

Wednesday, November 16, 2005
This day in history from:

Biking

With the increased gas prices, I figured to take up, dust off, oil up and get the rust out of the old mountain bike again. For those small errands such us going to the corner store or the neighborhood barbershop, I used to take the car. Now, I'm sensible enough to just bike it. Oh, the exercise is a plus, too.

The terrain is very much different here than my old neighborhood. Here, you really need to use the gears as compared to my old village where I mostly stick to one gear because it's pretty much flat. But I get the same workout here for less amount of time. Actually, bringing the bike back to working condition was a workout in itself. And I even used an electric air compressor to reinflate the tires at that.

The only reason why I stopped biking in my old village was the presence of stray dogs. Here, it was the presence of stray motorists.

I hope I can pick up the habit again, not only for my health, but also to improve my flute playing. I hope I can do this at least thrice a week, minimum.

I think we all should use bikes whenever we can, just to contribute to gas conservation (and also our personal financial conservation, heheheheheh!).

Wish me luck.

Tuesday, November 15, 2005
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It's a miracle!

I've got to know who is the "miracle doctor" of Norberto Gonzales. I have hypertension since law school and a history of relatives who are all candidates for tripple bypass operations.

That doctor had "miraculously" removed a his heart blockage, and "miraculously" enabled Bert to report back to work yesterday.

This doctor may have a long line in his clinic. But then again, who are they trying to fool?

Monday, November 14, 2005
This day in history from:

Such a toothache

I have such severe headaches. They're so painful for me that I thought they were the worst pain experience I have ever had.

Until now...

This is the reason why I could not blog about the law or about issues. I had such a toothache. It acted up when I drank anything (hot or cold) and the pain shoots all the way up to my head. It was so debilitating, I even had to drink water with a straw.

So debilitating that I had to go to my dentist (my former neighbor over at my old house, you know, where I'm supposed not to go to again...) for an emergency visit. For security reasons, I don't go there at night. But this was an emergency.

Turns out a filling gave out and my tooth was dead. The dentist gave me a temporary filling to commence the treatment.

It's all better now.

Funny thing is, I went by our old house to visit the tenant there. My sister rented it to the family of Bea's former classmate (and still her schoolmate) and I'm personally friends with the couple.

Man, that house (even with the paint job) still brings back memories... The ambience has not changed. And with that I gleefully explained, "Now I have something to blog about!" I'll leave at at that for now...

So there. This is my post today. Hopefully, I'll blog about something "more serious" tomorrow.

I have to rest now because of this tooth and what it put me through today... So if you'll excuse me, maybe we'll see each other in dreamland. I have a very important day tomorrow...

Sunday, November 13, 2005
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Results of the Seventh Visit Presscon

Punzi: Thank you all for coming. Before I answer questions, let me read first a prepared statement.

"Under the terms of our custody agreement last April and the court order on the basis thereof, I have sole custody, care and control over my two kids. In exchange, my soon-to-be-ex-wife has visitorial rights every second Sunday of the month.

The terms of this arrangement may be subject for review after nine months.

Once again, she did not visit her kids today for the seventh time. This time, I did not even bother to tell my kids she was coming so as not to unecessarily disturb their lives. I hardly realized that she was due for a visit today myself until now.

Finally, this is again a matter for record, for the upcoming review of our custody arrangement. She could not haggle for more visits when she did not even use the ones she was already entitled to."

At this point, I will entertain questions... or any corroborations...

Sick

Believe it or not, I was sick since Friday. I even cancelled all my appointments and excused myself from the BPOCC regular monthly choir service over at the EDSA Shrine.

What came down? I really don't know. I didn't have any fever but I had a splitting headache and some dizziness. It took all my strength to show up for choir last night. And after that, I dropped like a lugnut on metal pail.

Feeling better now but still a little feeble. But I have some paperwork to catch up on and the car's power window got stuck. I have to bring it in for repairs today.

To close, can I just say one word to those who lambast the media nowadays? HYPOCRITES...

Sorry, I couldn't resist saying it...

Saturday, November 12, 2005
This day in history from:

Hustler Magazine vs. Falwell

Just finished watching The People vs. Larry Flynt over at Cinemax that prompted me to look up his Supreme Court Case (Husler Magazine vs. Falwell, 485 U.S. 46 [1988] ).

Due to his legal battles, Larry Flynt has, wittingly or unwittingly, become a defender of US Civil liberties, as seen in his personal website.

Let me quote something from the decision (grabed from here), as likewise used in the movie:

At the heart of the First Amendment [the freedom of expression] is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "[T]he [485 U.S. 46, 51] freedom to speak one's mind is not only an aspect of individual liberty - and thus a good unto itself - but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503 -504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). As Justice Holmes wrote, "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).

Powerful words. May this inspire you to blog on.

Friday, November 11, 2005
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Blog Lecture No. 50: Separation of Church and State

Before I start, I like to state, for the record, that this is my 50th blog-lecture. And to think, I have been blogging for less than a year. I have already give lectures on 50 politically, socially and culturally relevant topics as they do become relevant. And I do not foresee any end to this, given the richness of the law and the dynamics of Philippine society, culture and politics.

It just goes to show that 2005 will go down in Philippine history as one of the more significant years. We truly live in interesting times...

So let us begin...

What does the 1987 Constitution provide under the principle of separation of church and state?

Section 6, Article II of the 1987 Constitution provides:

Section 6. The separation of Church and State shall be inviolable.

While Section 5, Article III thereof provides the clarification:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

What is the popular misconception about separation of church and state?

People mistakenly believe that the principle entails each instution minding its own business. Church does not interfere with the affairs of the State while the State does not meddle with matters of religion.

Why is it a misconception?

Because it is not accurate by constitutional standards. It is not complete.

What is the more accurate constitutional principle of such separation?

Bear in mind that the bill of rights define a person, an entity or a groups' powers as against the state. The more accurate concept is that the bill of rights are the guarantees of the such persons entities or groups that the all powerful state, the entity that has power over life, liberty and property, will not touch and just respect. The rights under the constitution are, in a sense, the limits to such power.

With this principle of mind, separation of church and state entails two principles, namely:

1. The non-establishment clause; and
2. The free expression clause.

What is the principle of non-establishment?

It simply prohibits the establishment of any religion by law (or simply put, there should be no state-espoused, official or sanctioned religion). More simply, the goverment cannot set up a church (Board of Education vs. Everson, 330 U.S. 15 [1946]). The government cannot pass laws which aid one religion, aid all religions or prefer one religion over another.

It cannot, openly or secretly participate in the affairs of any religious organization and vice-versa.

For example, the state cannot, by law establish Roman Catholicism as the state official religion. The state, on the contrary, should encourage plurality and voluntarism, respecting the people's right to choose their paths to salvation.

So there is a wall of separation of church and state? But why are religious leaders "interfering" with state affairs?

Yes there is but to be technical or apologetic about it, the church (or other religious groups) are not "directly meddling with state affairs. Indirecty is more accurate because they attempt to guide their flock in their exercise of sovereignty (remember, it resides in the people and all authority emanates from them).

Are there constitutionally created exemptions to this non-establishment principle?

Yes. Section 28(2), Article VI of the 1987 Constitution states:

(3)Charitable institutions, churches and parsonages or covenants appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.
This is an exemption because instead of demanding taxes from all, the State favors all religions by lifting some tax burden from their shoulders.

Also, Section 29 (2) of the same article states:

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

Here, religion is assisted or espoused merely as secondary to governmental functions.

What is the principle of free religious expression?

It the state's guarantee the the people shall be free to exercise their chosen religion.

According to Cantwell vs. Connecticut, 310 U.S. 296 (1940), it has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. On the other hand, it safeguards the free exercise of the chosen form of religion.

Such safeguards include non-discrimination on the basis of religion. No religious test shall be required for the exercise of civil or political rights.

Does that mean, arguing from the extreme, that the government cannot stop me from practicing Satanism?

Yes, but every right has a limit, as every right has a corresponding obligation. You are free to exercise your religion as long as you do not hurt others or violate the law... As long as your religious practice does not require you to sacrifice virgins... (they're meant to be loved, not sacrificed...)

Ok class, ponder on those concepts for a while... I may lecture on this further later on...

Thursday, November 10, 2005
This day in history from:

Pinoy.Tech.Blog Actual Legal Entry

Check out my Pinoy.Tech.Blog entry on the possible liabilites of the "Fil-Am Bot Master" had he done the deeds in Philippine jurisdiction. Do check it out.

As you may notice, it's the first entry I made where I actually utilized my legal skills...

Wednesday, November 09, 2005
This day in history from:

First day of work

I forgot to mention it.

On 06 November 1995, barely a month after taking the bar, I reported to work in a lawfirm in Makati. Hence, I have been working for 10 years, though officially, I'll be 10 years into law practice on 15 April 2006.

It was the first working day after Typhoon "Rosing," the last storm to squarely hit Manila came over. The lawfirm that hired me had this big IPO project for a reality company. Hence, all the lawyers were out so I just worked on the office LAN. The office lan will be another story.

As the day apparently drew to a close, I was called to this client's offices to help with the IPO efforts. The one who called me was to be my first boss, Atty. JJ Disini.

So what seemed like the end of my first work day turned out to be just the beginning. Pulled out an all-nighter working because apparently, that storm blew open the sliding doors of the penthouse and took away various condominium certifates of title into the Pasig River.

Total time logged for the first day: 26 hours. JJ was already staying at a room there for days, so his logged time was way longer.

And that would be only the first of the all-nighters I would have in my 10 year career. I already blogged about my Makati-based life in this post.

Tuesday, November 08, 2005
This day in history from:

Blog Lecture No. 49: Rape

Again, the topic of today's blog-lecture needs no further introduction.

How is the crime of rape now classified?

Under Section 2 of Republic Act No. 8353, otherwise known as the "Anti -Rape Law of 1997," the crime of rape is now classified as a crime against persons. Before, it was classified as a crime against chastity (with seduction, abduction, etc.)

What is the significance of this?

Being a crime against persons, the prosecution thereof does not need to be initiated by the offended party only. More often than not, the rape victim does not or chooses not to pursue a case against the rapists due to extreme shame.

Now, law enforcement or even a witness to the crime can trigger prosecution for rape.

Is "marital rape" now covered?

Yes. This law effective reversed established jursiprudence that rape cannot be committed by the lawful husband on the wife because by marriage, she has given consent (or even obliged to) give herself to her husband sexually.

The new Section 260-C of the Revised Penal Code now states:

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.
So how is rape committed?

Before, rape is committed by a man having carnal knowledge of a woman without her consent, through force, intimidation, due to unconsciousness or age. Penetration of the penis on the labia, even the slightest, was a must.

The revision now states that rape is committed by a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.


The third circumstance, by fraudulent machinations or grave abuse of authority is new.

Now, there is a new twist. Rape can also be committed "by any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person."

This already indicates that rape can also be committed by a man or a woman on another man or woman, by means of sexual assault. No penetration of the penis is necessary. It could even be achieved through objects. The penetration need not even be on the genitals. Inserting object on the anal orifice or the mouth is now sufficient for rape.

What circumstances will get the rapist the automatic death penalty under the first type of rape?

They are:

l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;

2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;

3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;

7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;

8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
Also, when on the occassion of the rape, a homicide is committed, the penalty shall be death.

What circumstances will get the rapist reclusion perpetua to death?

They are:

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

Is the punishment under the second type of rape lesser than the first?

Yes. Penalty for this type of rape starts at prision mayor, unlike the first type which starts at reclusion perpetua.

What are the specific aggravating circumstances to this type of rape?

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua.

When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be reclusion perpetua.

Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying that merited the automatic death penalty on the first type of rape.
How about a case of six people that gang raped a girl in a van?

On the basis of conspiracy or even by principal by indispensable cooperation, each rapist is liable for each other's rape. Hence, each of them will be convicted on six counts. The driver of the van should also be liable.

Hungry? I'm starved!

Law School Days: First Semester, Second Year

The third of a series:

First Semester, Second Year (SY 1992-1993):

Subjects/Units/Teachers:

1. Criminal Procedure- 2 units; Justice Lorenzo Relova
2. Negotiable Instruments- 2 units; Atty. Antonio Abad
3. Property- 4 units; Justice Hector Hofileña
4. Sales- 2 units; Dean Cesar Villanueva
5. Security Transactions- 3 units; Atty. Eduardo Serapio
6. Land Titles- 2 units; Atty. Lorenzo Padilla
7. Forensic Medicine- 1 unit; "Doctorney" Arsenio Pascual, Jr.
8. Social Philosophy-2 units; Atty. Salvador Mirasol

General Highlights:

1. Yes, that's Atty. Ed Serapio, co-accused in Erap's plunder case. He was a very kind teacher and I personally don't know how he ever got involved in this case...

2. With a relatively "light" unit load and one year experience in law school, we felt this was the lightest semester we ever had. People already knew when they will be called to recite in class so they "studied smarter" instead of "studying harder."

3. Justice Relova's order of recitation is dependent on his roll call. And sometimes, we get away with a "generic" case digest recitation. Sometimes, we even get away with a prayer recitation if we do it fast enough that he does not really hear what we say.

4. Though teaching a hard and abstract subject such as Negotiable Instruments, Atty. Abad made it very entertaining, with his "hard to forget" acronyms. But I can't mention them in this blog because I want to maintain its PG rating...

5. Dean Villanueva sounds so much like Michael Jackson...

6. Atty. Lorenzo Padilla taught his subject with so much angst and passion. Made you "empathize" with him.

7. Don't remember much about our property class, except that Justice was a kind man... He taught us before he became Associate Justice for the Court of Appeals...

8. The only thing I remember in Forensic Medicine was his lecture on "bestiality," "pygmalionism" and "necrophilia."

9. Atty. Mirasol did not fit well in law school and I heard from the grapevine that poor student feedback made him resign (and/or got him "fired" from law school).

Personal Highlights:

1. Dean's List for the third time.

2. First break-up with the girlfriend. She specifically asked me to "court her again." The fool that I was, I did court her again for a few months and she took me in again as her boyfriend sometime before this semester ended.

3. Probably part of the reason why we broke up was because I developed some feelings for one of my law school classmate, while I was with my girlfriend. I admitted this to her and that probably influenced her into that first break-up.

That was a wrong move. Not only did my relationship with my girlfriend suffer, that friend of mine and I drifted apart.

Monday, November 07, 2005
This day in history from:

Heads should be rolling...

I don't get it.

SNAFUs such as this and this (oh yeah and this, too which came to my mind because of this) should have resulted in butts kicked, fingers severed and heads served in silver platters.

But they are not. Why?

Oh wait a minute! I get it! It could be any of the following:

a) No moral authority to kick butts and/or demand fingers/heads

b) The superiors are just as inferior (or just as deserving to have their butts kicked, etc.)

c) Buying loyalty from these "birds of the same feather" by not kicking their butts, etc.

d) All of the above

e) None of the above

I know you can choose the correct answer yourself.

But remember this. Sovereignty resides in the people all government authority emanates from them (Section 1, Article II, 1987 Constitution). Hence, we are their ultimate superiors so any fault they make surely comes back to us.

We truly got (and continue to get) the government we deserve.

Pity.

Sunday, November 06, 2005
This day in history from:

How 'bout a song?

I'll Always Love You
by Michael Johnson


standing by my window listening for your call
seems i really miss you after all
time won't let me keep these sad thoughts to myself
i just like to let you know
i wish i'd never let you go

and i'll always love you
deep inside this heart of mine
i do love you
and i'll always need you
and if you ever change your mind i'd still
i will love you

wish you'd never left me love's a mystery
you can break a heart so easily
days and nights reveal how much i feel for you
time has come for me to see
how much your love has meant to me

and i'll always love you
and if you ever change your mind i'd still
i will love you

time like a river keep on rolling by and by
nothing's left for me to see
so i watch the river rise

and i'll always love you
deep inside this heart of mine
i do love you
and i'll always need you
and if you ever change your mind, i'd still
i will, i'd still
i will love you

Blog Lecture No. 48: Requisites of a TRO/Injuction

This previous blog-lecture is a pre-requisite.

What are the requisites for an injunction?

Injunction may issue pendente lite (pending litigation or pending the case) only in cases of extreme urgency, where the right to the possession, during the pendency of the main case, of the property involved is very clear; where considerations of relative inconvenience bear strongly in favor of the complainant seeking the possession of the property pendente lite; where there was willful and unlawful invasion on plaintiff's right, over his protest and remonstrance, the injury being a continuing one.

Before an injunction can be issued, it is essential that the following requisites be present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which injunction is to be directed is a violation of such right. (ORTAÑEZ-ENDERES, ET AL. vs. COURT OF APPEALS, ET AL. (G.R. No. 128525, 17 December 1999)

The onus probandi (a cool latin term for "burden of proof") is on movant to show that there exists a right to be protected, which is directly threatened by the act sought to be enjoined. Further, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent a serious damage.(Gustillo vs. Real, A.M. No.MTJ-00-1250, 28 February 2001)

What are the additional requirements for the issuance of a TRO?

Under existing rules:

xxx If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. (Section 5, Rule 58, 1997 Revised Rules of Civil Procedure)
Again, a TRO may be issued if it appears from the facts shown by the affidavits of the verified application that GREAT and IRREPARABLE INJURY would result BEFORE the matter is heard on notice.

To be technical about it, therefore, TROs are granted without the other party being heard on the matter because it will be the judge's discretion to issue it based only on the initial pleadings (the verified petition and its accompanying affidavits).

In my opinion, therefore, a TRO issued after hearing the other party would already show the judge's inclination on the issuance of the preliminary injunction, despite any statements to the contrary.

How does this fit in the PCIJ blog issue?

You be the judge, based on the information I have stated above. The sub judice rule prevents me from lecturing on this futher and applying the above to the PCIJ issue.

Saturday, November 05, 2005
This day in history from:

Collecting my thoughts

Shocked.

So let me just direct you to the pertinent links while I collect my thoughts...

The PCIJ entry here.

Prof. Edwin Lacierda's blog entry here.

Jove Francisco's entry here.

The alleged offending post is here. (Just to emphasize the futility of that temporary restraining order because Yahoo! is not a party to this case.)

Friday, November 04, 2005
This day in history from:

Three weddings and my heart's funeral...

Weddings need a lot of preparation. So do marriages but people don't seem to prepare for that one.

Just a wild thought as I recently received three wedding engagement announcements. One, I will be attending. One, I don't know if I'm invited. The last one I will not attend, even if invited.

The first one was from a dear friend of mine from law school, also a lawyer working in the Supreme Court for almost ten years. The fateful day will be on 28 May 2006 as she required me to mark the date already. It's a good thing I use a PDA because, that appointment would have been lost upon the changing of the diaries next year. She's Bea's godmother so Bea will be my date on that date (pardon the word play).

The second one was from an old flame. She just texted me to ask me something and the text exchange led to this information. I don't know when's the date but I'm sure won't pry on further.

The third one came mere minutes after this. It reads:

"Hi [Punzi]! Want to share with you a gud news. Am engaged to [the guy's name] na! June nxt year. :)"
This one came from GT...

To tell you the truth, I don't know what to feel. Part of me says it's good she's finally getting married. With all the things she went through, she deserves all the happiness that is coming to her. And I'm sure the lucky guy (a college friend) that is going to marry her likewise deserves her as well.

But another part tells me to wake up from this romantic dream I used to have, something I had since college (and my friends can attest to that), that we would eventually be together. Of course I buried that dream when I got married but when I got separated, that dream (whether I liked it or not) came creeping at the back of my mind again.

But now I have to bury it... again...

Anyway, I will blog a proper eulogy for my heart come June of 2006...

Three weddings and a funeral. It's a good thing there's choir tomorrow. I'm going to need it. And some lot of german beverages, too.

Bed Weather

It's raining outside, just ate and I actually have time to sleep today.

Who could ask for more?

See you in dreamland.

The Old and the New

Went to my consultancy for an appointment that did not show up. Bummer.

Then, all of a sudden, our boss declared a half-day. Apparently with nothing else to do, Tiborce and I watched the new Zorro flick. Ho-humm. Catherine Zeta-Jones does not look the way she used to, and we can blame Michael Douglas for that.

In between the movie, a potential client texted me to meet in a fast-food restaurant at Commonwealth Avenue. So I was uneasy since I really don't want to come in late. That probably contributed to my attitude towards the movie.

Anyway, when I got there, I saw someone from my old choir. We talked briefly about the old times. Then, she asked me when I was coming back (to the choir). I just smiled. Of course, never.

Then I met my potential client... from my current (new) choir. Suffice it to say I closed the deal and got myself a new retainer...

The Lord sure has a very good sense of humor... It was, all in all, a good day.

Thursday, November 03, 2005
This day in history from:

Start of my one day workweek...

For the second day of November, we usually visit our dead from my mother's side. This year was no exception. But being a working day, I had to get a couple of things out of the way that morning before we went there.

Spent a very good afternoon with my relatives, while we visited my maternal grandparents over at Loyola Marikina. This time, I brought my kids since November 2 was a working day, I figured there would be less people there.

Well this was not entirely correct. It seems everyone was thinking the same way we were. But of course, we got in and out comfortably, though there were more people than usual this year.

It was nice to spend these times with the kids. Nico's growing more and more each day and so is Bea. (Just thinking aloud and belatedly... "That girl" knows we come there at that time of the year and she lives nearby, maybe she watched her kids from afar. Or then again, maybe not. But if she did, she will see that her kids are doing great without her...)

Today will be a working day, albeit short. The meeting I was anticipating would be next Monday so I just have to report to my consultancy office for half a day and that's basically it, though there are some people who would like to see me.

The Christmas rush is upon us and as we speak, debts are beginning to pile up (even before the shopping). Jabez, Jabez, Jabez... Hope something big turns up before December.

It's fun to watch curious Nico as we put out the Christmas decorations. This is his first cogent Christmas season, as I have said before. He ran about inspecting all the decorations as they were being put is. Wait 'til he sees the tree...

I'll blog some more later on. Sleepy.

Wednesday, November 02, 2005
This day in history from:

Second Pinoy.Tech.Blog Entry

Check out my second Pinoy.Tech.Blog entry on the release of the Mac OS X 10.4.3 update.

Yes, I know it's just another report on a new software release. Just bear with me. I'm just warming up.

Tuesday, November 01, 2005
This day in history from:

Remembering the Dearly Departed

It's November 1, All Saints' Day, here but we use this to remember our dearly departed, and not the next day which is All Souls' Day. But let's all take a moment of silence for the repose of their souls.

Of course, our family is no exception, simply because there is work the next day. We will be going to Laguna because there are only a few of us left in the Philippines. Most of our clan (on the father side, to be precise) have already left for "greener pastures" abroad.

Spent half the day yesterday putting content on my cousin's iPod Mini. I hope that will be a dress rehearsal for my own iPod (Video), if fortunes will change and I will be allowed to have one. It's so easy to use.

Only one thing, though. I may not have learned it yet but it appears you have to put the content first in your computer then to the iPod. I was hoping to put material there directly since I don't even have 60Gs in any single computer.

We will not be bringing the kids today because there are all tired yesterday. There were so many kids yesterday and we actually ran out of candy. There were a lot of outsiders who took advantage. And I thought most people went home to the provinces to take advantage of this long weekend.

Anyway, that's all for now. We have to leave early.

Disaster relief, sustainable development & community service


Featured PinoyBlog of the Week

Side Prayers

PRAYER FOR GENEROSITY
Lord Jesus,
Teach me to be generous,
Teach me to serve You as You deserve
To give and not to count the cost,
To fight and not to heed the wounds,
To toil and not to seek for rest,
To labor and not to ask for reward,
except that of knowing
That I do Your Holy Will. Amen

THE LAWYER'S PRAYER
May every word I speak be from Your Truth...
I ask come from Your Wisdom...
May every case I handle receive Your Guidance...
May every heart, every life I touch, feel Your Love.

THE JABEZ PRAYER
And Jabez called on the God of Israel saying,
"Oh, that You would bless me indeed,
and enlarge my territory,
that Your Hand be with me,
that You would keep me from evil,
that I may not cause pain."

So God granted him what he requested.

Side Oath

The Lawyer's Oath
I do solemnly swear that
I will maintain allegiance to
the Republic of the Philippines,
I will support its Constitution
and obey the laws as well as
the legal orders of the
duly constituted authorities therein;
I will do no falsehood,
nor consent to the doing of any in court;
I will not wittingly or willingly
promote or sue any groundless,
false or unlawful suit,
nor give aid nor consent to the same;
I will delay no man for money or malice,
and will conduct myself as a lawyer
according to the best of my knowledge
and discretion with all good fidelity
as well to the courts as to my clients;
and I impose upon myself this voluntary obligation
without any mental reservation
or purpose of evasion.
So help me God.

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