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Sabado, Hulyo 9, 2016

The Technicalities of Taking The Bar

So, you just graduated from law school. What. A. Relief. 

And then you're only allowed a day, a week or two to celebrate because guess what? You need to prepare for another exam just to get your license to practice what you have been studying for what seems like a lifetime. Like what most of the blogs have been saying, there is no standard formula for passing the Bar. It's a combination of studying your brains out, praying your heart out and a little bit of luck. :)

What rarely one writes about are the technicalities. So I'm here to write about them - from getting your bar permit to the time you receive your test booklets and questionnaires. 

1. Filing a Petition to Take The Bar Examinations
Yes, you do have to file a petition to take the Bar. It's usually in pro-forma so all you have to do is fill out the blank spaces and have it notarized. You can ask your school if they have a sample form for you to copy. Also, you need to pay P3,500.00 for the filing fee and an additional fee of P200.00 for every time you take it again. You also have to submit three 1.5x1.5 I.D. pictures with your full name on it and a self-addressed stamped envelope. (Why an envelope? Because the Supreme Court (SC) is going to snail mail your Bar exam results.)
If you're lucky your school is going to take care of the rest of the requirements but for posterity's sake, I'm going to list them all down here:
  • Birth Certificate ( NSO or Local Civil Registrar)
  • Marriage Certificate for married female applicants (NSO or Local Civil Registrar)
  • Two Testimonials of Good Moral Character executed by a member of the IBP
  • Pre-Law Transcript
  • Law Degree Transcript
  • Certificate of No Derogatory Record
  • Certification by the School Registrar executed under oath and noted by the Law Dean that the applicant graduated law and his/her name is included in the LEB Certification
Note: These are all requirements for new applicants. For those with special concerns, please refer to the SC website for additional requirements.

Where do you submit all these requirements? At the Office of the Bar Confidant. You can just go directly to the SC entrance and the guards will direct you to where it is. Upon submission of these requirements, you will receive a slip of paper containing a date and a reference number. Note that this is NOT your Bar Candidate number.

2. Getting Your Bar Permit
On the date indicated in that slip of paper, you have to call the OBC to ask if your permit's ready. Pro-tip: you can always ask someone to call for you, just don't forget to give that person your reference number. After the go signal, you need to personally go to the SC to get your permit. Accompanying it are your building and room assignments, a map of the venue and sample instructions for the exam's questionnaire.

At this point in your life, you are going to realize that it's really going down, so I advise you to just focus on studying and keep calm. You can read the sample instructions at a later time.

3. A  Day Before D Day
The day before the first day of the examinations is the second most nerve-wracking moment of your life. First being, the day of the release of the results. This is important because it will set the tone for the rest of the exam days. Before sleeping or attempting to sleep, check that you have your permits with you, at least two sign pens, and read the instructions that the SC has previously given. Write your name on the room assignment. Don't worry, there's no format for writing your name on such. 

And don't forget candy or any kind of brain food because the exams are four hours long for each subject! Eat your breakfast too!

4. Inside the Examination's Venue
Once you're inside the venue, it's pretty easy from there. Just follow the hordes of people going towards one direction, enter the building and find your room assignment. The I.D.s are usually color-coded for each building assignment.

You can study outside (or inside) your room until 30 minutes before exam time. The proctors will have you place your bags outside the room and only your ballpen, permit, snacks and water will be allowed inside the room. You have to submit your permit to the proctor upon every exam. For the duration of the 30 minutes, no one is allowed to go out as the questionnaires and your exam booklets are distributed. Your questionnaires are placed faced down. You are not allowed to peek at them but you can count the number of pages of your questionnaire just to be sure you are not missing a page. The exams start and end on time unless the Bar examiner announces an extension (because of the difficulty of the exam.)

You can write on your questionnaires and have the option to keep them after every exam. BUT do not forget to get your permit from the proctor. As for bathroom breaks, you are allowed to have them but you will be accompanied by a watcher. After taking the last exam (Ethics, woohooo!!!), the proctor will not return your exam permits. CONGRATS, you can finally breathe! Now go and enjoy the Salubong! :)

Miyerkules, Nobyembre 20, 2013

Anti-Graft League of the Philippines v. San Juan

Marcos issued a decree establishing the Technological Colleges of Rizal. It directed the Board to provide funds for the purchase of 4 parcels of land which belonged to Ortigas &Co. For 12 yrs, the land was idle and construction did not materialize so the Board authorized the selling of the lot. This was sold to Valley View Realty. Ortigas filed for rescission of contract contending that it violated the terms of the contract by selling such lot to Valley View. The Board made a Resolution providing for the rescission of the deed of sale to Valley View.
Valley View filed a case against the Province of Rizal for specific performance but was dismissed. Thereafter, a compromise agreement was executed  between Province and Ortigas to reconvey the lots to Ortigas. The Anti-Graft League of the Philippines is a non-government organization, constituted to protect the interest of the Republic and its instrumentalities and political subdivisions against abuses its public official and employees, claims the instant petition for certiorari is a taxpayer’s suit because the Provincial Board of Rizal allegedly illegally disbursed public funds in transactions involving the land.

W/N this is a case of taxpayer’s suit.

To constitute a taxpayer’s suit, two requisites: (1) that public funds are disbursed by a political subdivision or instrumentality and (2) in doing so, a law is violated or some irregularity is committed, and that the petitioner is directly affected by the alleged ultra vires act.
In the case at bar, petitioner’s standing should not even be made an issue here since standing is a concept in constitutional law and here no constitutional question is actually involved. The disbursement of public funds was only made when the Province bought the lands from Ortigas. Petitioner never referred to such purchase as an illegal disbursement of public funds but focused on the alleged fraudulent reconveyance of said property to Ortigas because the price paid was lower than the prevailing market value of neighboring lots.
As a taxpayer, petitioner would somehow be adversely affected by an illegal use of public money. But when no such unlawful spending has been shown petitioner, even as a taxpayer, cannot question the transaction executed by the Province and Ortigas for the reason that it is not privy to said contract.   

Sabado, Setyembre 14, 2013

Republic v CA and Quintos (G.R. No. 159594)

Eduardo and Catalina were married in civil rites. However, the couple were not blessed with a child because Catalina had a hysterectomy following her second marriage.

Eduardo filed a petition for declaration of nullity of marriage citing psychological incapacity as a ground. He alleged that Catalina always left the house without his consent; that she engaged in petty arguments with him; that she constantly refused to give in to his sexual needs; that she spent most of her time gossiping with neighbors instead of caring for their adopted daughter; that she gambled away all his remittances as an overseas worker; and that she abandoned the conjugal home with her paramour.

As support to his claim of psychological incapacity, he also presented the results of a neuro-psychiatric evaluation conducted by Dr. Annabelle Reyes stating that Catalina exhibited traits of a borderline personality disorder that was no longer treatable.

Catalina did not appear during trial but admitted her psychological incapacity. She denied flirting with different men and abandoning the conjugal home.

Whether or not Catalina was psychologically incapacitated to fulfill marital duties.

No. Marriage remains valid.

Psychological incapacity is an incapacity/inability to take cognizance of and to assume basic marital obligations, and is not merely the difficulty, refusal or neglect in the performance of marital obligations.

In Republic v CA(Molina), the Supreme Court has established guidelines involving the nullity of marriage based on the ground of psychological incapacity. These were not met in the instant case since the gravity, root cause and incurability of Catalina's purported psychological incapacity were not sufficiently established.

Catalina's behavior of frequent gossiping, leaving the house without Eduardo's consent, refusal to do household chores, and take care of their adopted daughter were not established. Eduardo presented no other witness to corroborate these allegations.

Also, the RTC and CA heavily relied on Dr. Reyes' evaluation despite any factual foundation to support this claim. The report was vague about the root cause, gravity and incurability of the incapacity.Even the testimony of Dr. Reyes stated a general description of borderline personality disorder which did not explain the root cause as to why Catalina  was diagnosed as such. They did not specify the acts or omissions or the gravity which constituted the disorder. What was established was that Catalina was childish and immature.

Furthermore, Dr. Reyes had only one interview with Catalina. This lacks the depth and objectivity of an expert assessment.

From the scant evidence presented, it can be adduced that Catalina's immaturity and apparent refusal to perform her marital obligations do not constitute psychological incapacity alone. It must be shown that such immature acts were manifestations of a disordered personality that made the spouse completely unable to discharge the essential obligations of marriage.

Biyernes, Marso 1, 2013

Litimco v La Mallorca

Tomas Litimco filed a petition before the Public Service Commission (PSC) praying for authority to operate a TPU service on the line Manila-Malolos via Sta. Isabel with the use of 10 units. Several operators filed written oppositions.

Before PSC could render its decision, La Mallorca, another operator, moved to reopen the case stating that if the petition to operate the line proposed be granted it would work to its prejudice and so it requested a reopening in order that it may file its opposition. The motion was granted.

However, instead of presenting evidence in support of its opposition, La Mallorca moved for postponement, only to announce days later that instead of merely objecting to the petition, it decided to file an application under a separate number (Case No. 63120) requesting for authority to operate the same line applied for by petitioner by rerouting 4 of its 10 round trip units of the line Malolos-Manila via Guiguinto.

The PSC rendered decision denying petitioner’s application but granting that of respondent on the ground that the latter has a better right to render the service applied for.

Petitioner contends that the Public Service Commission erred because:
1. his application was filed much ahead than that of respondent and as such it is entitled to preference
2. in awarding the line to respondent it in effect gave recognition to the unfair attitude of respondent
3. to grant the service in favor of respondent will work to the prejudice of the riding public for it would be allowing respondent to abandon a portion of its service on its original line Manila-Malolos via Guiguinto, a service which was previously found to promote the need and convenience of the people in said territory.

Respondent reasoned out that its:
1. application for rerouting will not involve any increase of trips or units nor will involve the purchase of new trucks, while that of petitioner would call for the use of 10 new trucks, which means a further depletion of the already depleted dollar reserve of our government
2. application for re-routing will not involve the acquisition of an operating right over the national highway from Malolos railroad crossing up to Guiguinto, while, on the other hand, petitioner’s application will involve the acquisition of a new operating right

Who has a better right to render the service?

Litimco. Since it is admitted that he is financially competent and able to operate the line proposed and is also an operator of a bus line from Manila to Malolos via Bulacan, we see no plausible reason why he should not be given preference to operate the service applied for considering that he is the first one to apply for such line.

This is in accord with the policy to stave off any act of discrimination or partiality against any application for operation of a new line. While there may be cases where an applicant, even if ahead in time, was not given the service, it is because it was proven that he was financially incompetent, or otherwise disqualified, to render the service, If an applicant is qualified financially, and is able to undertake the service, he should be given the preference as a matter of fairness and justice.

Priority in the filing of the application for a certificate of public convenience is, other conditions being equal, an important factor in determining the right of the public service companies.

The argument that the application of petitioner for the operation of the new line calls for the purchase of 10 new trucks is of no consequence, if the operation will redound to the benefit of the riding public. The operation of a new line as a general proposition always involves a new investment which may happen even with old operators. In the course of operation, and with the passing of time, new equipment and facilities may be found necessary to maintain an efficient service, which additional expenditure cannot certainly be considered as a cause for disruption of the service. This is a matter of finance which concerns exclusively the one who desires to operate the new line.

At any rate, the new line merely covers 7 kilometers of new territory which traverses three sparsely populated barrios, and considering that respondent did not deem it necessary to cover said territory except after the passing of many years, and only thought of giving the service when petitioner filed his application, fairness requires that preference be given to petitioner.

Republic v PLDT

PLDT and RCA Communications Inc (which is not a party to this case but has contractual relations with e parties) entered into an agreement where telephone messages, coming from the US and received by RCA's domestic station could automatically be transferred to the lines of PLDT and vice versa.

The Bureau of Telecommunications set up its own Government Telephone System (GTS) by renting the trunk lines of PLDT to enable government offices to call private parties. One of the many rules prohibits the use of the service for his private use.

Republic of the Philippines entered into an agreement with RCA for a joint overseas telephone service where the Bureau would convey radio-telephone overseas calls received by the RCA's station to and from local residents.

PLDT complained that the Bureau was violating the conditions for using the trunk lines not only for the use of government offices but even to serve private persons or the general public. PLDT gave a notice that if violations were not stopped, PLDT would sever the connections -which PLDT did.

Republic sued PLDT commanding PLDT to execute a contract, through the Bureau, for the use of the facilities of defendant's telephone system throughout the Philippines under such terms and conditions as the court finds it reasonable.

Whether or not Republic can command PLDT to execute the contract.

No. The Bureau was created in pursuance of a state policy reorganizing the government offices to meet the exigencies attendant upon the establishment of a free Gov't of the Phil.

When the Bureau subscribed to the trunk lines, defendant knew or should have known that their use by the subscriber was more or less public and all embracing in nature.

The acceptance by the defendant of the payment of rentals, despite its knowledge that the plaintiff had extended the use of the trunk lines to commercial purposes, implies assent by the defendant to such extended use. Since this relationship has been maintained for a long time and the public has patronized both telephone systems, and their interconnection is to the public convenience, it is too late for the defendant to claim misuse of its facilities, and it is not now at liberty to unilaterally sever the physical connection of the trunk lines.

To uphold PLDT's contention is to subordinate the needs of the general public.

Mecenas v CA

M/T Tacloban (barge-type oil tanker) collided with M/V Don Juan ( inter-island vessel carrying 750 passengers). When the collision occurred, the sea was calm, the weather fair and visibility good. As a result, M/V Don Juan sank and the passengers perished.

Petitioner was the parent of the passenger who died. They file an action for damages alleging the negligence of Capt. Santisteban (captain of Don Juan) and Negros Navigation (owner of Don Juan).

1. Who was negligent?
2. Whether or not Capt. Santisteban and Negros Navigation was negligent.

1. M/V Tacloban was primarily and solely at fault. M/V Don Juan was also at fault.

Rule 18 of the International Rules of the Road which requires 2 power-driven vessels meeting end on or nearly end on each to alter her course to starboard so that each vessel may pass on the port side of each other.

In the case, M/V Tacloban, as held by the report of the Commandant of the Philippine Coast Guard, failed to follow the Rules. Hence, she was deemed negligent.

However, route observance of the International Rules of the Road will not relieve a vessel from responsibility if the collision could have been avoided by proper skill on her part or even a departure from the rules.

M/V Don Juan having sighted M/V Tacloban when it was still a long way off was negligent in failing to take early preventive action and in allowing the 2 vessels to come into close quarters as to render the collision inevitable when there was no necessity for passing so near M/V Tacloban for Don Juan could choose its own distance. It is noteworthy that M/V Tacloban upon turning hard to port shortly before the moment of collision, signaled its intention to do so by giving 2 short blasts with its horn. Don Juan gave no answering horn blast to signal it's own intention and proceeded to turn hard to starboard.

2. Yes. The behavior of the captain -playing mahjong "before and up to the time of collision" constituted gross negligence. This behavior is unacceptable on the part of the master of a vessel to whose hands the lives of at least 750 passengers were entrusted.

It does not matter that the Captain was off-duty or on-duty. Realistically speaking, there is no such thing as off-duty hours for the master of the vessel at sea that is a common carrier who is required extraordinary diligence. Hence, Negros Navigation in permitting or in failing to discover and correct such behavior is also grossly negligent.

Starboard -right
Port -left

Wild Valley v CA

Philippine Roxas (owned by Phil. Pres. Lines), vessel, arrived in Venezuela to load iron ore. When vessel was ready to leave the port, Mr. Vasquez (official pilot of Venezuela) was designated to navigate the vessel through the Orinoco River.

The master of the vessel, Captain Colon, was at the bridge with the pilot when the vessel left the port. Captain Colon left the bridge when the vessel was underway.

The vessel experienced some vibrations but the pilot assured that they were just a result of the shallowness of the vessel. The vessel again experienced vibrations which led to the vessel being run aground in the Orinoco River, obstructing the ingress and egress of vessels.

As a result of the blockage, the Malandrinon (vessel owned by Wildvalley Shipping) was unable to sail out that day. For this reason, Wild Valley commenced an action for damages.

1. Whether or not fault can be attributed to the master(captain) of Philippine Roxas for the grounding of said vessel.

2. Whether or not the doctrine of res ipsa loquitor applies.

1. No. It's the pilot's fault!

There being no contractual obligation, the master was only required to give ordinary diligence in accordance with Article 1173 of the New Civil Code. In the case, the master exercised due diligence when the vessel sailed only after the main engine, machine rise and other auxiliaries were checked and found to be in good running condition and when the master left a competent officer - the pilot who is experienced in navigating the Orinoco River.

Philippine rules on pilotage enunciate the duties and responsibilities of a master of a vessel and its pilot. The law is explicit in saying that the master remains the overall commander of the vessel even when there is a pilot on board. He remains in control despite the presence of a pilot who is temporarily in charge of the vessel. It is NOT required of him to be on bridge while the vessel is being navigated by a pilot.

Furthermore, the Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the river. Admitting his limited knowledge of the River, Captain Colon deemed it best to rely on the knowledge and experience of pilot Vasquez to guide the vessel safely.

The pilot should have been aware of the portions which are shallow and which are not. His failure to determine the depth of the river and his decision to plod on his set course, in all probability, caused damage to the vessel. Thus, he is negligent and liable for the grounding.

2. NO. The elements of res ipsa loquitor are:
-accident was of such character as to warrant inference that it would not have happened except for defendant's negligence
-accident must have been caused by an agency/instrumentality within the exclusive management or control of the person charged with the negligence complained of
-accident must not have been due to any voluntary action or contribution on the part of the person injured.

There was a temporary shift of control over the ship from the master to the pilot on a compulsory pilotage channel. Thus, requisites 1 and 2 (negligence and control) are not present in the following situation.