issuance of Regional Dele-

gation Order as prescribed

in Revenue Memorandum
Order No, 2-2008. The Com-
missioner and Deputy Com-
missioners are not preclud-
ed from exercising their
authority to issue SDT under
the National Internal Reve-
nue Code.

REVIEW OF REGIONAL
CASES BY THE ASSESSMENT
DIVISION:
The Assessment Division
shall review all dockets cov-
ered by Letters of Authority
and Tax Verification Notices
prior to the issuance of a
preliminary /final assessment
notice, termination letter,
tax credit certificate or re-
fund check, i ncl udi ng
claims for refund based on
BIR form 1700 which are pre-
audited, reviewed and ap-
proved at the Regional
District Office and transmit-
ted directly to the Infor-
mation Systems Operation
Service (ISOS) for processing
pursuant to RMO No. 39-94,
as amended by RMO No. 19
-2004

On April 16, 2009, the BIR
issued Revenue Memorandum
Circular No. 23-2009 reiterated
the policies relative to the
revalidation of Letters of Au-
thority (LA), issuance of sub-
poena duces tecum (SDT)
and the review of cases by
the assessment divisions in the
regional offices.

REVALIDATION OF LETTERS
OF AUTHORITY:
Revalidation of letters of
authority gives rise to the
extension of the period with-
in which the Revenue Of-
ficer assigned to the case
may submit the report of
the investigation to higher
authorities for review and
approval. The extension
period shall be equivalent
to the original number of
days within which to report
the case under existing rev-
enues.
Failure of the Revenue
Officer to request for the
revalidation of the LA shall
not invalidate the LA nor will
it modify the existing rules
when an assessment may
be issued. However, such
failure shall be a ground for
the imposition of disciplinary
actions upon the Revenue
Officer, including the reas-
signment of the case to
another revenue officer, if
the Regional Director, upon
the recommendation of the
Revenue District Officer.

REQUEST FOR THE ISSUANCE
OF THE SUBPOENA DUCES
TECUM:
Pursuant to the Revenue
Audit Memorandum Order
No. 3-82 and Revenue
Memorandum Order No. 35
-90, only books of ac-
counts, accounting records
and/or specific documents
necessary for inspection/
investigation but not yet
provided by the taxpayer
should be mentioned in the
memorandum of the Reve-
nue Officer recommending
the issuance of the SDT.
The action lawyer shall
coordinate with the Reve-
nue Officer assigned to the
case for the latter to be
present during the appoint-
ment date and time for the
presentation of records
and/or documents for him
to check if the records pre-
sented are the complete
records as stated in the SDT.
The Regional Director
shall sign the SDT for cases
within his regional jurisdic-
tion, or the Assistant Re-
gional Director, in the ab-
sence of the former, unless
otherwise delegated to the
Chief of the Legal Division or
the concerned Revenue
District Officer through the
REVENUE MEMORANDUM CIRCULAR NO. 23-2009 REITERATES
POLICIES RELATIVE TO THE REVALIDATION OF LETTERS OF
AUTHORITY, ISSUANCE OF SUB POENA DUCES TECUM AND
REVIEW OF CASES BY THE ASSESSMENT DIVISION
APRIL 2009 VOLUME 2, ISSUE No. 4
L C A L C A L C A
LINES LINES LINES
Inside this issue:
Revenue Regu-
lations 4-2009
2
Revenue Regu-
lations 5-2009
2-
3
Revenue Mem-
orandum Order
No. 8-2009
4
April 2009 Ju-
risprudence
5-
9



REVENUE REGULA-
TIONS NO. 4-2009:
Amending the Provi-
sions of Section 24 of
Revenue Regulations 3
2006 Pertaining to the
Incremental Revenue
Under Republic Act
No. 9334

Section 24 of RR 3-2006 is
hereby amended to read
as follows:

SEC.24 INCREMENTAL
REVENUE UNDER THE ACT-

xxx
For purposes of these Reg-
ulations, the incremental
revenue shall be equiva-
lent to the amount of ac-
tual collection of excise
taxes from locally manu-
factured and imported
alcohol and tobacco
products for the year un-
der consideration in ex-
cess over that of the im-
mediately preceding year
for the next five (5) years
from the date of effectivi-
ty of the said Act starting
January 2005 until De-
cember 2009.


REVENUE REGULA-
TIONS NO. 5-2009:
Reverts the Venue for
the Filing of Returns
and Payment of Capi-
tal Gains Tax, Cred-
itable Withholding
Tax, and Documen-
tary Stamp Tax due
on Sale, Transfer or
Exchange of Real
Property of Large
Taxpayers of the
Place Where the
Property is Located

Under this Revenue Regu-
lations, the venue for filing
of returns and payment of
taxes due on onerous
transfers of real properties
owned by the large tax-
payers is to the Authorized
Agent Banks (AABs) locat-
ed within the Revenue Dis-
trict Office (RDO) having
jurisdiction over the place
where the property being
transferred is located.

Also, the venue for the fil-
ing of the returns and pay-
ment of taxes due on oner-
ous transfers of real proper-
ties for all taxpayers, in-
cluding large taxpayers, is
generally determined by
the place where the prop-
erty being transferred is
located.

Capital Gains Tax (CGT)
and Documentary Stamp
Tax (DST) on the sale, ex-
change or disposition of
real properties classified as
Capital Assets shall be paid
within thirty (30) days fol-
lowing each sale, ex-
change or disposition of
lands and/or buildings
which are not actually
used in the business of a
corporation and is treated
as capital assets. The Capi-
tal Gains Tax Return (BIR
Form No. 1706) shall be
filed by the seller or the
buyer and the payment of
taxes shall be made to an
AAB located within the
RDO having jurisdiction
over the place where the
property being transferred
is located based on the
gross selling price or the fair
market value.

The corresponding Docu-
mentary Stamp Tax Return
(BIR Form Tax No. 2000-OT)
shall be filed within five (5)
days after the close of the
month when the taxable
document was made,
signed, accepted or
transferred, and the tax
due thereon shall be paid
at the same time the
aforesaid return is filed
with the AAB having juris-
diction over the place
where the property being
transferred is located
based on the considera-
tion contracted to be
paid for such realty or on
its fair market value.

The above rules apply
whether the seller /
transferor thereof is a
large taxpayer or a non-
large taxpayer.

These rules on the venue
for the filing of the returns
and the payment of the
taxes due on real proper-
ties onerously disposed
shall likewise apply in cas-
es of taxable foreclosure
sales.

Further, Creditable With-
holding Taxes deducted
and withheld by the with-
holding agent/buyer on
the sale, transfer or ex-
change of real property
classified as ordinary as-
sets, shall be paid by the
withholding agent/buyer
upon filing of the CWT
Return (BIR Form No. 1606)
with the AAB having juris-
diction over the place
where the property being
transferred is located with-
in ten (10) days following
the end of the month in
which the transaction oc-
curred.

The corresponding Docu-
mentary Stamp Tax Return
(BIR Form No. 2000-OT)
shall be filed in the same
manner and period as
the
Page 2 L C A LINES
that of sale, transfer or
exchange of real property
classified as Capital As-
sets.

These rules on the venue
for the filing of the returns
and the payment of the
taxes due on real proper-
ties onerously disposed
shall likewise apply in cas-
es of taxable foreclosure
sales.

Upon presentation of the
Capital Gains Tax Return
or Creditable Withholding
Tax Return and Documen-
tary Stamp Tax Return with
a bank validation evi-
dencing full payment of
required taxes, the RDO of
the revenue district office
where the property being
transferred is located shall
issue the corresponding
Certificate Authorizing
Registration (CAR) or Tax
Clearance Certificate
(TCL) for the registration of
the real property in favor
of the transferee.


Revenue Regulations 5-2009 continued...
Page 3 VOLUME 2, ISSUE No. 4

The following
checks should be ac-
cepted in payment for
internal revenue taxes:
Managers or Cashiers
Checks;

Checks drawn against
a joint or multiple ac-
count for the purpose
of tax payment of the
personal tax liability of
any of the members
thereof provided that
the name and TIN of
Section II of RMO No. 32-
2008 amended to read
as follows:

4. The issuance of
Revenue Official Re-
ceipts shall be limited
to tax payments, in
cash not exceeding
the amount of twenty
thousand pesos (Php
20,000.00) per return.
However, there shall
be no limit on the
amount if payment is
made thru checks.
REVENUE MEMORANDUM ORDER NO. 8-2009 Further Amends Section II of
Revenue Memorandum Order (RMO) No. 32-2008 Amending Section III. (4)
Policies and guidelines of RMO No. 4-2007 Relative to the Limitation on the
Acceptance of Payments of Internal Revenue Taxes Thru Revenue Collection
Officers (RCOs)
Page 4 L C A LINES
the paying member/s
shall be indicated on
the back/face of the
check;

Checks drawn
against the personal
account of the own-
er of a single proprie-
torship in payment of
the tax liability of his/
her business;

Checks drawn
against the account
of a single proprietor-
ship in payment of the
tax liability of the own-
er provided that the
name and TIN of the
owner are indicated
at the face/back of
the check;

Checks issued by ei-
ther of the spouses to
pay their income tax
liabilities.

MALAYAN INSURANCE
COMPANY, INC.
vs.
VICTORIAS MILLING COM-
PANY INC.

G.R. No. 167768, April 17,
2009
Facts: The SEC issued a
Stay Order, suspending all
actions for claims against
Victorias Milling Co. Inc.
(Victorias) pending before
any court, tribunal, office,
board, body or commission.
The SEC later constituted a
Management Committee.
While the Stay Order is in ef-
fect, Malayan Insurance
Company Inc. (Malayan) a
surety released an amount
to the NLRC pursuant to a
writ of execution issued
against it to satisfy a judg-
ment against Victorias.

Failing to obtain reim-
bursement from the Victorias,
Malayan filed a complaint for
sum of money with the RTC.
SEC issued an order appoint-
ing a rehabilitation receiver
for Victorias. The RTC sus-
pended the proceedings
against Victorias, and subse-
quently denied Malayans
motion for reconsideration of
which decision was upheld
on appeal.

ISSUE: Whether or not
Malayans claim against Vic-
torias should be suspended.

RULING: The suspension of
the proceedings against Vic-
torias should be suspended

As long as the corporation
is under a management
committee or a rehabilitation
receiver, all actions for claims
against it --- for money or
otherwise --- must yield to the
greater imperative of corpo-
rate rehabilitation, excepting
only, as already mentioned,
claims for payment of obliga-
tions incurred by the corpora-
tion in the ordinary course of
business. Enforcement of writs
of execution issued by judi-
cial or quasi-judicial tribunals,
since such writs emanate
from actions for claims,
must, likewise, be suspended.

It must be noted that Ma-
layans claim is for reimburse-
ment of whatever it may
have paid to the NLRC as full
and final settlement of the
award rendered against re-
spondent in the Abelido
case. In order to resolve
whether said proceedings
should be suspended, it is
necessary to determine
whether the complaint for
sum of money with damages
is a claim within the con-
templation of P.D. No. 902-A.

Claim refers to debts or
demands of a pecuniary
nature. It means the asser-
tion of a right to have money
paid. Also in one case, it was
referred to as an action in-
volving monetary considera-
tions. More importantly, the
Interim Rules of Procedure on
Corporate Rehabili tation
p r o v i d e s a n a l l -
encompassing definition of
the term and thus includes all
claims or demands of what-
ever nature or character
against a debtor or its prop-
erty, whether for money or
otherwise.

Clearly then, the com-
plaint filed by petitioner
against respondent falls un-
der the category of claim
as defined in the Interim
Rules, considering that it is for
pecuniary considerations.

The suspension of pro-
ceedings referred to in Sec-
tion 6 (c) of Presidential De-
cree No. 902-A, which perti-
nently provides

x x x all actions for claims
against corporations, partner-
ships or associations under
management or receivership
pending before any court,
tribunal, board or body, shall
be suspended accordingly.

uniformly applies to all
actions for claims filed
against a corporation, part-
nership or association under
management or receivership,
without distinction. Upon the
creation of a management
committee or the appoint-
ment of a rehabilitation re-
ceiver, all claims for actions
shall be suspended accord-
ingly.

The interim rules define a
claim as referring to all claims
or demands, of whatever
nature or character against a
debtor or its property, wheth-
er for money or otherwise.
There are no distinctions or
exemptions.

The suspension of action
for claims against a corpora-
tion under rehabilitation re-
ceiver or management com-
mittee embraces all phases
of the suit. Otherwise stated,
what are automati cally
stayed or suspended are the
proceedings of an action or
suit and not just the payment
of claims. Furthermore, the
actions that are suspended
cover all claims against a
distressed corporation wheth-
er for damages founded on
a breach of contract of car-
riage, labor cases, collection
suits or any other claims of a
pecuniary nature.


DANTE TAN
vs.
PEOPLE OF THE PHILIPPINES

G.R. No. 173637, April 21,
2009

FACTS: Three Informations
were filed against Dante T.
Tan (Tan) before RTC of
Pasig City.

The first pertains to alle-
JURISPRUDENCE APRIL 2009
Page 5 VOLUME 2, ISSUE No. 4
gations that Tan employed
manipulative devises in the
purchase of Best World Re-
sources Corporation (BW)
shares. The second and
third involve the alleged
failure to file with the Securi-
ties and Exchange Commis-
sion (SEC) a sworn state-
ment of his beneficial own-
ership of BW shares.

Tan later moved to dis-
miss the first case due to the
Peoples alleged failure to
prosecute. Claiming viola-
tion of his right to speedy
trial, Tan contends that
there was an unreasonable
length of time and without
giving any excuse or justifi-
cation for the delay. Finally,
he claimed to have been
substantially prejudiced by
this delay.

RTC ruled that the de-
lays which attended the
proceedings of the first case
were vexatious, capricious
and oppressive, resulting in
violation of petitioners right
to speedy trial.

Setting aside the trial
courts order of dismissal,
the Court of Appeals grant-
ed the petition for certiorari.
In resolving the petition, the
appellate court reinstated
the first case.

ISSUES: 1. Whether or not
the petition for certiorari
violated Tans right against
double jeopardy;
2. Whether or not the first
criminal case was correctly
dismissed by the trial court
on the ground of violation of
Tans right to speedy trial.

RULING: As regards the
first issue, there was no viola-
tion of Tans right against
double jeopardy. While
indeed petitioner was in
fact the one who filed the
Motion to Dismiss in the first
case, the dismissal thereof
mistakes and negligence of
counsel bind his client, ex-
cept only when such mis-
takes would result in serious
injustice.

Jurisprudence continues
to adopt the view that the
fundamentally recognized
principle is that the concept
of speedy trial is a relative
term and must necessarily be
a flexible concept.

In the cases involving
petitioner, the length of de-
lay, complexity of the issues
and his failure to invoke said
right to speedy trial at the
appropriate time tolled the
death knell on his claim to
the constitutional guarantee.
There is clearly insufficient
ground to conclude that the
prosecution is guilty of violat-
ing petitioners right to
speedy trial.

ELISEO F. SORIANO
vs.
MA. CONSOLIZA P.
LAGUARDIA, in her capacity
as Chairperson of the Movie
and Television Review and
Classification Board, MOVIE
AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, JES-
SIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HER-
NANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNA-
BE S. YARIA, JR., MICHAEL M.
SANDOVAL, and ROLDAN A.
GAVINO

G.R. No. 164785, G.R. No.
165636, April 29, 2009

FACTS: Soriano, as host of
the program Ang Dating
Daan, made the following
remarks:

Lehitimong anak ng
demonyo; sinungaling;

Gago ka talaga Michael,
masahol ka pa sa putang
babae o di ba. Yung putang
babae ang gumagana lang
doon yung ibaba, [dito] kay
Michael ang gumagana ang
itaas, o di ba! O, masahol pa
sa putang babae yan. Sabi
ng lola ko masahol pa sa
putang babae yan. Sobra
ang kasinungalingan ng mga
demonyong ito.
[1]
x x x

Members of the Iglesia ni
Cristo (INC) filed complaints
before the MTCRB against
Soriano for the said utter-
ance. While the proceedings
are pending, the MTRCB pre-
ventively suspended the
showing of Ang Dating Daan
program.

Soriano now questions
with the Supreme Court the
MTRCBs preventive suspen-
sion order for being void as it
was issued without authority
and in violation of his rights to
equal protection and reli-
gion.

ISSUE: Whether or not the
MTRCBs preventive suspen-
sion is void for having been
issued without authority and
in violation of Sorianos right
to equal protection of laws
and religion.

RULING: The preventive
suspension issued by the
MTRCB is valid.

The issuance of a preven-
tive suspension comes well
within the scope of the
MTRCBs authority and func-
tions. The power to issue pre-
ventive suspension forms part
of the MTRCBs express regu-
latory and supervisory statu-
tory mandate and its investi-
gatory and disciplinary au-
thority subsumed in or implied
from such mandate. Any
other construal would render
its power to regulate, super-
vise, or discipline illusory.

JURISPRUDENCE APRIL 2009
Page 6 L C A LINES
was due to an alleged
violation of his right to
speedy trial, which would
otherwise put him in dou-
ble jeopardy should the
same charges be revived.
Petitioners situation is dif-
ferent. Double jeopardy
has not attached, consid-
ering that the dismissal of
first case is on the ground
of violation of his right to
speedy trial was without
basis and issued with grave
abuse of di screti on
amounting to lack or ex-
cess of jurisdiction. Where
the right of the accused to
speedy trial has not been
violated, there is no reason
to support the initial order
of dismissal.

As regards the second
issue, there was likewise no
violation of Tans right to
speedy trial.

In determining the right
of an accused to speedy
trial, courts are required to
do more than a mathe-
matical computation of
the number of postpone-
ments of the scheduled
hearings of the case. A
mere mathematical reck-
oning of the time involved
is clearly insufficient, and
particular regard must be
given to the facts and
circumstances peculiar to
each case.

Petitioners objection
to the prosecutions stand
that he gave an implied
consent to the separate
trial in the first case is be-
lied by the records of the
case. No objection was
interposed by his defense
counsel when this matter
was discussed during the
initial hearing. His failure to
object to the prosecutions
manifestation that the
cases be tried separately is
fatal to his case. The acts,
Soriano next faults the
MTRCB for denying him his
right to the equal protection
of the law, arguing that, ow-
ing to the preventive suspen-
sion order, he was unable to
answer the criticisms coming
from the INC ministers.

The equal protection
clause demands that all
persons subject to legislation
should be treated alike, un-
der like circumstances and
conditions both in the privi-
leges conferred and liabilities
imposed. It guards against
undue favor and individual
privilege as well as hostile
discrimination. Surely, Soriano
cannot, under the premises,
place himself in the same
shoes as the INC ministers,
who, for one, are not facing
administrative complaints
before the MTRCB. For an-
other, he offers no proof that
the said ministers, in their TV
programs, use language simi-
lar to that which he used in
his own, necessitating the
MTRCBs disciplinary action. If
the immediate result of the
preventive suspension order is
that petitioner remains tem-
porarily gagged and is una-
ble to answer his critics, this
does not become a depriva-
tion of the equal protection
guarantee. The Court need
not belabor the fact that the
circumstances of petitioner,
as host of Ang Dating Daan,
on one hand, and the INC
ministers, as hosts of Ang Ta-
mang Daan, on the other,
are, within the purview of this
case, simply too different to
even consider whether or not
there is a prima facie indica-
tion of oppressive inequality.
Soriano next injects the
notion of religious freedom,
submitting that what he ut-
tered was religious speech,
adding that words like
putang babae were said in
exercise of his religious free-
dom.

There is nothing in So-
rianos statements subject of
the complaints expressing
any particular religious belief,
nothing furthering his avowed
evangelical mission. The fact
that he came out with his
statements in a televised
bible exposition program
does not automatically ac-
cord them the character of a
religious discourse. Plain and
simple insults directed at an-
other person cannot be ele-
vated to the status of reli-
gious speech. Even petition-
ers attempts to place his
words in context show that
he was moved by anger and
the need to seek retribution,
not by any religious convic-
tion. His claim, assuming its
veracity, that some INC minis-
ters distorted his statements
respecting amounts Ang
Dating Daan owed to a TV
station does not convert the
foul language used in retalia-
tion as religious speech. They
simply illustrate that Soriano
had descended to the level
of name-calling and foul-
language discourse. It is set-
tled that expressions by
means of newspapers, radio,
television, and motion pic-
tures come within the broad
protection of the free speech
and expression clause. Each
method though, because of
its dissimilar presence in the
lives of people and accessi-
bility to children, tends to
present its own problems in
the area of free speech pro-
tection, with broadcast me-
dia, of all forms of communi-
cation, enjoying a lesser de-
gree of protection. The free-
dom of expression, as with
the other freedoms encased
in the Bill of Rights, is, howev-
er, not absolute. It may be
regulated to some extent to
serve important public inter-
ests, some forms of speech
not being protected. As has
been held, the limits of the
freedom of expression are
reached when the expression
touches upon matters of es-
sentially private concern.

A speech would fall un-
der the unprotected type if
the utterances involved are
no essential part of any ex-
position of ideas, and are of
such slight social value as a
step of truth that any benefit
that may be derived from
them is clearly outweighed
by the social interest in order
and morality. Being of little
or no value, there is, in deal-
ing with or regulating them,
no imperative call for the
application of the clear and
present danger rule or the
balancing-of-interest test,
they being essentially modes
of weighing competing val-
ues, or, with like effect, deter-
mining which of the clashing
interests should be ad-
vanced.

Unprotected speech or
low-value expression refers to
libelous statements, obsceni-
ty or pornography, false or
misleading advertisement,
insulting or fighting words,
i.e., those which by their very
utterance inflict injury or tend
to incite an immediate
breach of peace and expres-
sion endangering national
security.

The Court finds that So-
rianos statement can be
treated as obscene, at least
with respect to the average
child. Hence, it is, in that con-
text, unprotected speech. A
patently offensive utterance
would come within the pale
of the term obscenity should
it appeal to the prurient inter-
est of an average listener
appl yi ng contemporary
standards.

A cursory examination of
the utterances complained
of and the circumstances of
the case reveal that to an
average adult, the utteranc-
es Gago ka talaga x x x,
JURISPRUDENCE APRIL 2009
Page 7 VOLUME 2, ISSUE No. 4
masahol ka pa sa putang
babae x x x. Yung putang
babae ang gumagana
lang doon yung ibaba,
[dito] kay Michael ang
gumagana ang itaas, o di
ba! may not constitute
obscene but merely inde-
cent utterances. They can
be viewed as figures of
speech or merely a play on
words. In the context they
were used, they may not
appeal to the prurient inter-
ests of an adult. The prob-
lem with the challenged
statements is that they were
uttered in a TV program that
is rated G or for general
viewership, and in a time
slot that would likely reach
even the eyes and ears of
children.

While adults may have
understood that the terms
thus used were not to be
taken literally, children
could hardly be expected
to have the same discern-
ment. Without parental
guidance, the unbridled use
of such language as that of
petitioner in a television
broadcast could corrupt
i mpr essi onabl e young
minds. The term putang
babae means a female
prostitute, a term wholly
inappropriate for children,
who could look it up in a
dictionary and just get the
literal meaning, missing the
context within which it was
used. Petitioner further used
the terms, ang gumagana
lang doon yung ibaba,
making reference to the
female sexual organ and
how a female prostitute
uses it in her trade, then
stating that Sandoval was
worse than that by using his
mouth in a similar manner.
Children could be motivat-
ed by curiosity and ask the
meaning of what Soriano
said, also without placing
the phrase in context. They
may be inquisitive as to why
JURISPRUDENCE APRIL 2009
Page 8 L C A LINES
Sandoval is different from a
female prostitute and the rea-
sons for the dissimilarity. And
upon learning the meanings of
the words used, young minds,
without the guidance of an
adult, may, from their end, view
this kind of indecent speech as
obscene, if they take these
words literally and use them in
their own speech or form their
own ideas on the matter. In this
particular case, where children
had the opportunity to hear
petitioners words, when speak-
ing of the average person in
the test for obscenity, we are
speaking of the average child,
not the average adult. The
average child may not have
the adults grasp of figures of
speech, and may lack the un-
derstanding that language
may be colorful, and words
may convey more than the
literal meaning. Undeniably the
subject speech is very sugges-
tive of a female sexual organ
and its function as such. In this
sense, we find petitioners utter-
ances obscene and not enti-
tled to protection under the
umbrella of freedom of speech.

Even if we concede that
Sorianos utterances are not
obscene but merely indecent
speech, still the Court rules that
Soriano cannot avail himself of
the constitutional protection of
free speech. Said statements
were made in a medium easily
accessible to children. With
respect to the young minds,
said utterances are to be treat-
ed as unprotected speech.

The indecent speech was
made via television, a perva-
sive medium that, easily reach-
es every home where there is a
set and where children will likely
be among the avid viewers of
the programs therein shown.
The broadcast was aired at the
time of the day when there was
a reasonable risk that children
might be in the audience. So-
riano uttered his speech on a
GP or for general patron-
age rated program. Under
Sec. 2(A) of Chapter IV of
the IRR of the MTRCB, a
show for general patronage
is [suitable for all ages,
meaning that the material
for television x x x in the
judgment of the BOARD,
does not contain anything
unsuitable for children and
minors, and may be viewed
without adult guidance or
supervision. The words
petitioner used were, by
any civilized norm, clearly
not suitable for children.
Where a language is cate-
gorized as indecent, as in
Sorianos utterances on a
general-patronage rated TV
program, it may be readily
proscribed as unprotected
speech.

In the case at bar, So-
riano used indecent and
obscene language and a
three (3)-month suspension
was slapped on him for
breach of MTRCB rules. In
this setting, the assertion by
petitioner of his enjoyment
of his freedom of speech is
ranged against the duty of
the government to protect
and promote the develop-
ment and welfare of the
youth.

Indisputably, the State
has a compelling interest in
extending social protection
to minors against all forms of
neglect, exploitation, and
immorality which may pol-
lute innocent minds.
It has a compelling in-
terest in helping parents,
through regulatory mecha-
nisms, protect their chil-
drens minds from exposure
to undesirable materials
and corrupting experiences.
The Constitution, no less, in
fact enjoins the State, as
earlier indicated, to pro-
mote and protect the physi-
cal, moral, spiritual, intellec-
tual, and social well-being
of the youth to better pre-
pare them fulfill their role in
the field of nation-building.
In the same way, the State is
mandated to support par-
ents in the rearing of the
youth for civic efficiency
and the development of
moral character.

Sorianos offensive and
obscene language uttered
in a television broadcast,
without doubt, was easily
accessible to the children.
His statements could have
exposed children to a lan-
guage that is unacceptable
in everyday use. As such,
the welfare of children and
the States mandate to pro-
tect and care for them, as
parens patriae, constitute a
substantial and compelling
government interest in regu-
lating petitioners utteranc-
es in TV broadcast as pro-
vided in PD 1986.




PEOPLE OF THE PHILIPPINES
vs.
ROMEO BANDIN

G.R. No. 176531, April 24,
2009

FACTS: That on or about
May 21, 1993, at 12.30 P.M.,
more or less, at Tagpangi,
Cagayan de Oro City, Phil-
ippines, AAA, a 16-year old
victim woke up at past mid-
night because she felt a
heavy burden on top of her.
It was a naked man who
was holding her tightly and
who uttered in a command-
ing voice, Dont move!
She recognized the mans
voice as belonging to her
brother-i n-l aw, Bandi n.
Bandin removed the vic-
tims short pants and under-
wear. AAA covered her
genitals with her right hand
and pleaded with her broth-
er-in-law to stop. Bandin,
however, proceeded to
remove AAAs hand from
her genitals, spread her legs
and immediately inserted
his penis inside her vagina.
She shouted for help several
times but no one respond-
ed. She was too frightened
to resist Bandin because he
was armed with a long fire-
arm which he placed be-
side her. Finally, after hav-
ing his way with the victim,
Bandin warned her to keep
silent about the incident;
otherwise, he would kill her
and her parents. Subse-
quently, Bandin fled from
the scene.

ISSUES: 1. Whether or not
the Court of Appeals err in
modifying the decision of
the RTCthat the aggravat-
ing circumstances of dwell-
ing and use of deadly
weapon cannot be appre-
ciated the same not having
been alleged in the Com-
plaint;
2. Whether or not Bandin
was positively identified by
AAA as the one who com-
mitted the crime of rape.


RULING: The CA did not
err in modifying the RTC
decision.

The RTC in its decision
found Bandin guilty for the
crime of rape and consid-
ered the two generic ag-
gravating circumstances in
the imposition of the penal-
ty. Such decision was modi-
fied by the CA alleging that
since the complaint con-
tained no allegations per-
taining to the aggravating
circumstances of dwelling
and use of deadly weapon,
the same cannot be appre-
ciated in the imposition of
the penalty.

AAA's testimony was
credible as she delivered
her testimony in a clear,
direct and positive manner.
Through his voice, she posi-
tively identified appellant as
the man who sexually
abused her. Identification of
an accused by his voice has
been accepted, particularly
in cases where, as in this
case, the victim has known
the perpetrator for a long
time.

Consequently, Bandins
defense of denial and alibi
must crumble in the face of
AAA's positive and clear
identification of him as the
perpetrator of the crime.
Denial and alibi cannot be
given greater evidentiary
value than the testimonies of
credible witnesses who testify
on affirmative matters. Posi-
tive identification destroys
the defense of alibi and ren-
ders it impotent, especially
where such identification is
credible and categorical.


PEOPLE OF THE PHILIPPINES,
- versus
JAIME CADAG JIMENEZ
G.R. No. 170235, April 24,
2009

FACTS: A case was filed
against Jaime Cadag
Jimenez (Jimenez) of two
counts of the crime of Rape.

After trial, the RTC convict-
ed Jimenez. The trial court
found that Jimenez was the
biological father of AAA and
he started raping his own
daughter when she was only
eleven (11) years old. How-
ever, Jimenez was only held
criminally liable for two
counts of simple rape in view
of the failure of the prosecu-
tion to allege in the infor-
mations the qualifying cir-
cumstance of relationship of
the accused-appellant with
AAA.

This case was directly ap-
pealed to the Supreme
Court.

ISSUE: 1. Whether or not
the prosecution failed to es-
tablish the exact dates of the
commission of the crimes
charged; and
2. Whether or not the fail-
ure of AAA to recall these
dates with certainty clouds
the veracity of her testimony.


RULING: The Supreme
Court affirmed the conviction
of Jimenez.

The evidence for the prose-
cution supports the veracity
of the testimony and credibil-
ity of AAA.

AAA narrated again her
unfortunate tale before the
trial court and consistently
testified to the material facts
surrounding the rapes and
sexual assaults committed by
the Jimenez against her, and
unmistakably identified the
offender as her own father.

The medico-legal report
proved that AAA sustained
deeply healed hymenal lac-
erations which supported her
claim that she was sexually
abused.

The failure of the prosecu-
tion to prove the exact dates
of the commission of the
crimes charged is immaterial
and would not warrant the
reversal of Jimenezs convic-
tion. The exact time of the
commission of the crime of
rape is not a material ingredi-
ent of the said crime and it is
sufficient if the acts com-
plained of are alleged to
have taken place as near to
the actual date at which the
offenses are committed as
the information or complaint
will permit. The gravamen of
the crime of rape is carnal
knowledge of a woman
through force, threat, or in-
timidation against her will or
without her consent. As the
exact date of the commis-
sion of the rape is not the
essence of the crime and it is
sufficient to allege in the in-
formation a date as near to
the actual date of the of-
fense as the circumstances
allow, the dates of the rapes
committed by the Jimenez
need not be proven exactly
as alleged in the criminal
informations.

The failure of AAA to recall
minor details and the exact
dates of the incidents of rape
and sexual assault likewise
does not affect the veracity
of her testimony. These laps-
es are understandable taking
into account the nature of
these crimes she suffered at
her young age. The Court
cannot impose the burden of
exactness, detailedness, and
flawlessness on the victims
recollection of her harrowing
experiences.

Moreover, the credibility of
AAA remains unaffected
despite the purported lack of
outward change in her be-
havior during and after the
rape incidents and sexual
assaults, which according to
Jimenez is contrary to human
experience. It is well-settled
that no standard form of be-
havior can be anticipated of
a rape victim following her
defilement, particularly a
child who could not be ex-
pected to fully comprehend
the ways of an adult. Settled
is the rule that in incestuous
rape, the father's moral as-
cendancy and influence
over his daughter substitutes
for violence and intimidation.
The ascendancy or influence
necessarily flows from the
father's parental authority,
which the constitution and
the laws recognize, support
and enhance, as well as from
the children's duty to obey
and observe reverence and
respect towards their parents.


JURISPRUDENCE APRIL 2009
Page 9 VOLUME 2, ISSUE No. 4