Illegal Recruitment

Read this article from Inquirer.net about a woman getting penalty of 60 years imprisonment for illegal recruitment.  Since I’m taking up criminal law 2, I decided to have an advance reading about the elements of thsi crime.  It turned out that this crime is not listed under the Revised Penal Code but instead it can be found under the Labor Code.  Under Article 38, it provides that illegal recruitment involves:

(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article.(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

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Favorite Legal One Liners

1. Statistics never lie but lovers often do. - Antonio vs Reyes

2. While man is finite, he seeks and subscribes to the Infinite. - Estrada vs Escritor

3. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. - Calalang vs Williams 

4.  If one who wants to be a lawyer may prove better as a plumber, he should be so advised - Department of Education vs. San Diego

Novation and Accommodation

Can novation of contract be presumed?  Can there be an accommodation when the instrument is non-negotiable instrument?

These are the two main questions raised in the case of Romeo Garcia vs. Dionisio Llamas, GR 154127, Dec. 8, 2003.

Garcia and his partner De Jesus drew a promissory note which they acknowledged solidary obligation on the loan they receive from Llamas amounting to Php 400,000.00

Llmas filed a complaint for collection of sum of money and for damages as a result of the issuance of dishonored check issued by De Jesus and his failure to pay the oblgation despite Llamas repeated demands for payment.  

For his part, Garcia put up as defense that he was merely an accommodation party and that issuance of the check of De Jesus and acceptance of Llmas, despite the fact that it was subsequently dishonored, novated their obligation and that De Jesus assumed the entire obligation.  

In deciding the case, the SC defined what novation and accommodation mean.  As to the former, novation is a mode of extinguishing an obligation by changing its objects or principal obligations, by substituting a new debtor in place of the old one, or by subrogating a third person to the rights of the creditor.  The Civil Code provides that, (more…)

Notes on the Republic of the Philippines and Moro Islamic Liberation Front MOA on Ancestral Domain

Preliminary Notes:

In my OBLICON Class, I remember one classmate asking our professor what “Innominate Contracts” mean, I no longer recall what our professor answered.  What stuck to my mind was the etymology of the word, which roughly translated to “without a name” or contracts without a name or anonymous contracts as opposed to those contracts which have names like Contract of Sale, Contract of Lease, Employment Contract, etc.  A classmate also asked whether a memorandum of agreement takes the form of an innominate contract and our professor said yes. 

 Applying above, this Memorandum of Agreement then is a contract if agreed upon and signed by both parties, becomes a binding document to both parties.  As provided for by Article 1307 of the Civil Code of the Philippines,

Innominate contracts shall be regulated by the stipulations of both parties, by the provisions of Titles I and II of this Book, by the rules governing the most analogous nominate contracts, and by the customs of the place.

Aside from this specific provision which explicitly states on how innominate contracts are governed, there is also an implicit rule we learned in Constitutional Law I which says that, every contract must always confrom with statutes and with the fundamental laws of the land which is the Philippine Constitution. 

 The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) herein referred to as the “Parties” to this Agreement.

Terms of ReferenceThe context of referents follows:The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines;

Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understanding, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.

What is very obvious in the discussion of context of referents is its non-reference to the Constitution as the over-all legal framework of the of the MOA.  The absence of reference to the Constitution, however, does not and will not preclude the Court from reviewing the constitutionality of the agreement because as I said earlier, it is an implied rule that every contract must conform with the Constitution. 

Have agreed and acknowledged as follows:

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Spot the blot

Breaking news!

The Supreme Court issued a restraining order enjoining the GRP and MILF from proceeding with the MOA on the issue of Ancestral Domain and Bangsamoro Juridical Entity.

While reading the MOA, read some provisions which I think might conflict with the Constitution of the Philippines.

For the purpose of exercise your legal mind and to refresh our knowledge of Constitutional Law, let’s see if you can spot the blot in this MOA.  As a start, those with quotations are provisions which I humbly think to be unsconstitutional.

Below is the MOA copied from Inquirer.net

 GRP-MILF draft pact on Bangsamoro homeland
The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) herein referred to as the “Parties” to this Agreement.

Have agreed and acknowledged as follows:

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