RMS - Torreon Law

19/11/2024

𝐓𝐡𝐫𝐞𝐞 𝐌𝐨𝐝𝐞𝐬 𝐨𝐟 𝐏𝐫𝐞𝐥𝐢𝐦𝐢𝐧𝐚𝐫𝐲 𝐈𝐧𝐯𝐞𝐬𝐭𝐢𝐠𝐚𝐭𝐢𝐨𝐧

There seems to be three modes of preliminary investigation now: (1) summary investigation; (2) expedited preliminary investigation; and (3) regular preliminary investigation.

With the repeal of Rule 112 of the Rules of Court, there are recent changes on the rules in conducting preliminary investigation. It now depends on the penalty prescribed for the offense. Below is a short summary on the marked differences between the three kinds of preliminary investigations.

Department Circular No. 15, s. 2024 covers Regular Preliminary Investigation.

Department Circular No. 28, s. 2024 covers Summary Investigation and Expedited Preliminary Investigation.

28/03/2023

𝐏𝐑𝐄𝐌𝐀𝐓𝐔𝐑𝐄 𝐂𝐀𝐌𝐏𝐀𝐈𝐆𝐍𝐈𝐍𝐆 𝐀𝐍𝐃 𝟐𝟎𝟐𝟑 𝐁𝐒𝐊𝐄 𝐄𝐋𝐄𝐂𝐓𝐈𝐎𝐍𝐒

COMELEC Resolution No. 10902 provides that the Campaign Period begins on October 19, 2023, but the COMELEC already prohibits Campaigning from September 3, 2023, to October 18, 2023, despite the Campaign Period starting only from October 19, 2023. Therefore, even before the Campaign Period, the COMELEC listed as a prohibited act - "Campaigning" and cited as basis Section 80 of the Omnibus Election Code.

Now, this is interesting, since in the case of 𝙋𝙚𝙣𝙚𝙧𝙖 𝙫. 𝘾𝙊𝙈𝙀𝙇𝙀𝘾 (G.R. No. 181613 (Resolution), [November 25, 2009], 620 PHIL 593-642), the Supreme Court has clarified that premature campaigning as an offense is impossible:

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

Effectively, the Supreme Court in Penera has clarified that as to the current state of election law, no one can commit the prohibited "premature campaigning" as confirmed by the Court in its recent ruling in 𝙋𝙚𝙤𝙥𝙡𝙚 𝙫. 𝙍𝙖𝙢𝙤𝙮 (G.R. No. 212738, March 9, 2022), where the Supreme Court quashed the criminal informations charging Ramoy for premature campaigning during the 2010 Barangay Elections, to wit:

"In accordance with the foregoing, the Informations in Criminal Case Nos. Q-11-169068 and Q-11-169069 insofar as the facts alleged therein refer to the offense of premature campaigning under Section 80 of the Omnibus Election, which under the state of present law is "impossible" to commit, must be quashed."

What now? According to Commission Garcia [PNA https://www.pna.gov.ph/articles/1194910 ] he stated that the Penera ruling only applies to "automated" elections.
But the case of People v. Ramoy affirming Penera involves the 2010 Barangay Elections which was a manual election.

Only time will tell if the Supreme Court agrees with the COMELEC's interpretation of the Penera ruling.

09/02/2023

𝐀 𝐅𝐀𝐓𝐇𝐄𝐑 𝐂𝐀𝐍 𝐅𝐈𝐋𝐄 𝐀 𝐏𝐄𝐓𝐈𝐓𝐈𝐎𝐍 𝐅𝐎𝐑 𝐏𝐑𝐎𝐓𝐄𝐂𝐓𝐈𝐎𝐍 𝐎𝐑𝐃𝐄𝐑 𝐔𝐍𝐃𝐄𝐑 𝐕𝐀𝐖𝐂 𝐋𝐀𝐖 𝐎𝐍 𝐁𝐄𝐇𝐀𝐋𝐅 𝐎𝐅 𝐇𝐈𝐒 𝐌𝐈𝐍𝐎𝐑 𝐃𝐀𝐔𝐆𝐇𝐓𝐄𝐑 𝐀𝐆𝐀𝐈𝐍𝐒𝐓 𝐀𝐍 𝐀𝐁𝐔𝐒𝐈𝐕𝐄 𝐌𝐎𝐓𝐇𝐄𝐑; 𝐀𝐁𝐔𝐒𝐈𝐕𝐄 𝐌𝐎𝐓𝐇𝐄𝐑𝐒 𝐂𝐀𝐍 𝐁𝐄 𝐎𝐅𝐅𝐄𝐍𝐃𝐄𝐑𝐒 𝐔𝐍𝐃𝐄𝐑 𝐕𝐀𝐖𝐂 𝐋𝐀𝐖

x-----------------------------------------------------x

Randy and Rosalina were married and had one daughter - Rhuby. Sadly, the spouses became estranged after Randy discovered that Rosalina had extra-marital affairs. Rosalina got hooked in casinos. Rosalina incurred large debts prompting her to sell the house and lot, condo unit and vehicles provided by Randy for the family.

There were times that Rosalina hurt Rhuby by pulling her hair, slapping her face and knocking her head. One time, Rosalina pointed a knife at Rhuby and threatened to kill her. Rosalina even texted Randy about her plan to kill their daughter and commit su***de. Ma*****na plans were found in the apartment where Rosalina and Rhuby were staying. This prompted Randy to file a petition for issuance of Temporary Protection Order and Permanent Protection Order before RTC-Taguig.

The RTC however dismissed the petition, it explained that protection and custody orders in RA 9262 cannot be issued against a mother who allegedly abused her own child. The RTC ruled that the child's mother cannot be considered as an offender under the law. RTC also ruled that the remedies are not available to the father because he is not a "woman victim of violence."

𝐐𝐔𝐄𝐒𝐓𝐈𝐎𝐍 𝟏: Can a father file a petition for protection orders on behalf of his minor daughter?

Yes. In the case of 𝗞𝗻𝘂𝘁𝘀𝗼𝗻 𝘃. 𝗛𝗼𝗻. 𝗦𝗮𝗿𝗺𝗶𝗲𝗻𝘁𝗼-𝗙𝗹𝗼𝗿𝗲𝘀, 𝗚.𝗥. 𝗡𝗼. 𝟮𝟯𝟵𝟮𝟭𝟱, 𝗝𝘂𝗹𝘆 𝟭𝟮, 𝟮𝟬𝟮𝟮, the Supreme Court En Banc ruled that RA 9262 allows the father of the offended party (here, the child) to apply for protection and custody orders. RA 9262 explicitly allows parents or guardians of the offended party to file a petition for protection orders. The statute categorically used the word "parents" which pertains to the father and the mother of the woman or child victim.

𝐐𝐔𝐄𝐒𝐓𝐈𝐎𝐍 𝟐: Are abusive acts committed by the mother against her own child covered by RA 9262?

Yes. In the same case, the Supreme Court ruled that the statute uses the gender-neutral word "person" as the offender which embraces any person of either s*x.

Differently stated, the fact that a social legislation affords special protection to a particular sector does not automatically suggest that its members are excluded from violating such law. ### Logically, a mother who maltreated her child resulting in physical, s*xual or psychological violence defined and penalized under RA 9262 is not absolved from criminal liability notwithstanding that the measure is intended to protect both women and their children.

𝐐𝐔𝐄𝐒𝐓𝐈𝐎𝐍 𝟑: Is it required that the mother AND her child be victims of violence before they can be entitled to the remedies of protection and custody orders under RA 9262?

No. In the same case, the Supreme Court ruled that this restrictive interpretation will weaken the law and remove from its coverage instances where the mother herself is the abuser of her child. The cramping stance negates not only the plain letter of the law and the clear legislative intent as to who may be offenders but also downgrades the country's avowed international commitment to eliminate all forms of violence against children including those perpetrated by their parents.

In this case, the Supreme Court ordered that the Permanent Protection Order be issued immediately.

The Supreme Court ruled on this case 10-5, with dissenting opinions from Chief Justice Gesmundo, Justice Caguioa joined by Justice Kho, Jr., Justice Zalameda, and Justice Singh.

Access the full text: https://sc.judiciary.gov.ph/32898/ [uploaded 02/06/2023].

30/01/2023

𝐂𝐇𝐈𝐋𝐃𝐑𝐄𝐍 𝐏𝐑𝐄𝐒𝐔𝐌𝐄𝐃 𝐀𝐒 𝐋𝐄𝐆𝐈𝐓𝐈𝐌𝐀𝐓𝐄 𝐂𝐇𝐈𝐋𝐃𝐑𝐄𝐍 𝐌𝐀𝐘 𝐈𝐌𝐏𝐔𝐆𝐍 𝐒𝐔𝐂𝐇 𝐏𝐑𝐄𝐒𝐔𝐌𝐏𝐓𝐈𝐎𝐍
x-----------------------------------------------------x
Maria and Jose are married. However, Jose was a weak man and had s*xual in*******se with another woman, Jessica. It appears Jessica is married to a man named Brandon.

Because of the s*xual intimacy between Jose and Jessica - a child was born - Lowella.

Jose, a rich man, died without a will. The following claim to be the heirs - his wife Maria, and their children Basilio and Crispin. Lowella however, also claimed that she is an illegitimate child of Jose.

However, it appears that Lowella was born during the subsistence of the marriage between Jessica and Brandon, and thus presumed under the law to be the legitimate daughter of Jessica and Brandon, and not of Jose. In addition, it is settled that impugning the legitimacy of the child is a strictly personal right of the husband.

Can Lowella file a case to impugn her legitimacy as the daughter of Brandon and prove that she is instead the illegitimate daughter of Jose?

Yes. In the case of 𝙇𝙤𝙬𝙚𝙡𝙡𝙖 𝙔𝙖𝙥 𝙫. 𝘼𝙡𝙢𝙚𝙙𝙖 𝙔𝙖𝙥 𝙚𝙩 𝙖𝙡., 𝙂.𝙍. 𝙉𝙤. 222259, 𝙊𝙘𝙩𝙤𝙗𝙚𝙧 17, 2022, the Supreme Court, through the ponencia of Justice Leonen, ruled that:

"Children who enjoy the presumption of legitimacy under Article 164 of the Family Code may impugn this presumption through any of the grounds provided under Article 166 of the same Code. ###

In this day and age, the theory that only the father is affected by the infidelity of the wife no longer holds true. The circumstances under which these children are conceived and born have an impact on their rights and privileges. Filiation proceedings are instituted not only for the purpose of determining paternity. These proceedings are also filed 'to secure a legal right associated with paternity, such as citizenship, support . . . or inheritance, as with [Lowella] in this case. ###

In this case, it would be antithetical to the best interests of the child should the Petition be denied based merely on the archaic view that only the husband is "directly confronted with the scandal and ridicule which the infidelity of his wife produces." The best interest of the child is to allow [Lowella] to prove and establish her true filiation."

In addition, the Supreme Court here discussed the applicability of DNA Evidence to overturn the presumption of legitimacy.
Read the full text at: https://sc.judiciary.gov.ph/32572/ [uploaded 01/25/2023]

08/06/2022

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