Do you still need to file your SOCE if you had ZERO election contribution and/or expenditure?

Let us say you were a candidate in the recent Barangay and Sangguniang Kabataan (SK) elections.

Because of your overwhelming popularity, you won without spending anything.

You even refused all forms of donations coming from others.

In other words, you had no election contribution and expenditure.

Does it follow then that you no longer need to file your Statement of Contributions and Expenditures (SOCE)?

The answer is NO.

Even if you had no election contribution or expenditure, or both, you still have to file your SOCE, which, of course, must reflect such fact.

Remember that what is only essential is you filed your Certificate of Candidacy (COC) within the given period.

This only means then that as long as you filed your COC, you have to file your SOCE.

[References: Section 14 of Republic Act No. 7166, COMELEC Resolution No. 10209 (Promulgated on September 27, 2017), Juanito C. Pilar vs. COMELEC, G.R. No. 115245, July 11, 1995, and comelec.gov.ph]

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Why Barangay and SK candidates need to file their SOCEs

Image source: comelec.gov.ph

If you were one of the candidates in the recent Barangay and Sangguniang Kabataan (SK) elections, you need to file your SOCE.

By SOCE, I am of course referring to the Statement of Contributions and Expenditures.

But remember that the obligation to file SOCE is not only for those who won, but it is also for those who lost, got disqualified, and even those who withdrew their candidacies.

Because what is only essential is you filed your Certificate of Candidacy (COC) within the given period.

In other words, as long as you filed your COC, you have to file your SOCE.

When to file it

By law, you need to file your SOCE within 30 days from the day of the election.

Since the recent elections took place on May 14, 2018, you have until June 13, 2018 within which to file it.

Once filed, you will receive a Certificate of Compliance.

Why you need to file it

Bear in mind that if you won, you will only be allowed to assume your office after you filed your SOCE.

Remember too that if you are guilty of repeated failure to file SOCE, you will be subject to perpetual disqualification to hold public office.

By repeated failure to file SOCE, it means you have failed to file it for two or more number of times.

While perpetual disqualification to hold public office means you will no longer be allowed to hold public office for good.

[References: Section 14 of Republic Act No. 7166, COMELEC Resolution No. 10209 (Promulgated on September 27, 2017), Joel T. Maturan vs. COMELEC and Allan Patiño, G.R. No. 227155, March 28, 2017, and comelec.gov.ph]

Three voting age groups in the 2018 Barangay and SK elections

2018 Barangay and SK elections

On Monday, May 14, 2018, voters from all over the country will go to the polling centers to cast their votes for the Barangay and Sangguniang Kabataan (SK) elections.

This is the first time both elections will take place during the term of President Rodrigo Roa Duterte.

This is also the first after Congress postponed them several times.

The last time we had a Barangay election was in 2013, while the last for the SK election was in 2010.

Three voting age groups

There are a lot of things you need to know about the Barangay and SK elections, especially beginning this year.

Among them is the number of voting age groups involved.

In particular, there are three voting age groups in the Barangay and SK elections.

And these are:

(1) 15 to 17 years old;

(2) 18 to 30 years old; and,

(3) 31 years old and up.

15 to 17 years old

Those aged 15-17 will vote exclusively for the SK election.

As such, they will only have one ballot.

And that is the SK ballot.

18 to 30 years old

While those aged 18-30 will vote for both the Barangay and SK elections.

This means then that they will use two ballots.

And these are of course the Barangay ballot and the SK ballot.

31 years old and up

For those aged 31 and up, they will vote exclusively for the Barangay election.

It follows then that they will only have one ballot.

And that is the Barangay ballot.

Registered voter

But remember that even if you belong to these three age groups, you will only be allowed to cast your vote if you are a registered voter.

Some notable changes in SK elections

Image source: Unknown

After several postponements, the Sangguniang Kabataan (SK) election will finally push through on May 14, 2018.

It will take place simultaneously with the Barangay election, which was also postponed several times.

While there seems to be nothing new about the Barangay election, there are some notable changes when it comes to the SK election.

Age of SK voters

For instance, the voting age in an SK election before was from 15 to 21 years old.

Back then, you were entitled to vote for an SK official only if you belong to this age group.

But this is no longer true today.

Why?

Because it was changed to 15 to 30 years old.

This means even if you are already aged 22 to 30, you are now also entitled to vote for an SK official.

Age of SK candidates

Another notable change is of course in the age of those who wish to run for and hold SK positions.

To be a candidate in an SK election before, you need to be aged 15 to 21.

But this is no longer true today as well.

Why?

Because it was changed to 18 to 24 years old.

This means you are now qualified to run for and hold an SK position only if you belong to this age group.

It follows then that you are disqualified if you are either aged 15 to 17 or aged 25 to 30.

Anti-Political Dynasty Qualification in SK elections

One other notable change is the new Anti-Political Dynasty Qualification for candidates in an SK election.

In particular, one of the qualifications you need to meet now if you are an SK candidate is that you must not be related within the second civil degree of consanguinity or affinity to any incumbent elected national official, or to any incumbent elected regional, provincial, city, municipal, or barangay official, in the locality where you seek to be elected.

No such qualification ever existed before. In fact, this is the first of its kind in the country.

[References: Republic Act No. 10742, otherwise known as the “Sangguniang Kabataan Reform Act of 2015,” The Implementing Rules and Regulations (IRR) of Republic Act No. 10742, otherwise known as the “Sangguniang Kabataan Reform Act of 2015,” Department of the Interior and Local Government (DILG) – Memorandum Circular No. 2017 – 132 dated September 29, 2017 (Subject: Training Managers’ Orientation For All Provincial, City and Municipal Youth Development Officers On The Sangguniang Kabataan Mandatory Training), Sections 329, 423 – 439 of the Local Government Code of the Philippines, Section 10(O) of Republic Act No. 8044, otherwise known as “Youth In Nation-Building Act,” Sections 1 and 2 of Republic Act No. 9340, entitled “An Act Amending Republic Act No. 9164], Resetting the Barangay and Sangguniang Kabataan Elections, and for Other Purposes.”]

Provisional dismissal of a criminal case

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The Rules of Court allow the courts to dismiss a criminal case provisionally if it is with the express consent of the accused and with notice to the offended party.

By provisional dismissal, it literally means that the dismissal of the case is merely temporary.

Express consent of the accused

For the courts to provisionally dismiss a criminal case, the accused has to give his express consent.

How express consent given

Express consent to a provisional dismissal is given either viva voce (orally) or in writing.

It is a positive, direct, unequivocal consent which requires no inference or implication to supply its meaning.

Instances when express consent deemed given

For instance, the express consent of the accused is deemed given if he files a motion for provisional dismissal of the case.

It is also deemed given if he writes No objection or With my conformity on the motion of a prosecutor for provisional dismissal.

Inaction or silence of the accused

But the mere inaction or silence of the accused to a motion for provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.

Why express consent needed 

The express consent of the accused is of course needed to bar him from later asserting that the revival of the case will place him in double jeopardy for the same offense or an offense necessarily included in it.

Notice to the offended party

Notice to the offended party of the motion for provisional dismissal of a criminal case is also needed for the courts to dismiss it provisionally.

Remember that in crimes involving private interests, the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for provisional dismissal of the case.

Service to public or private prosecutor

Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing.

Proof of service

The proof of such service must be shown during the hearing on the motion. Otherwise, the requirement will become illusory.

Why notice to the offended party needed

Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds.

Provisionally dismissed criminal case may be revived

Since provisional dismissal of a criminal case literally means that the dismissal of the case is only temporary, it follows then that it can be revived at some future time.

How provisionally dismissed criminal case revived

The State may revive it either by:

(a) Refiling of the Information; or,

(b) Filing of a new Information for the same offense or an offense necessarily included in it.

In both ways, no new preliminary investigation is needed.

When new preliminary investigation needed

But a new preliminary investigation is needed before the refiling of the Information or the filing of a new Information in the following cases:

(a) If the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged;

(b) If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or an offense necessarily included in it;

(c) If under a new criminal complaint, the original charge has been upgraded; or,

(d) If under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal.

Time-bar

But even if a criminal case dismissed provisionally with the express consent of the accused and with notice to the offended party may be revived at some future time, its revival has to be made within the time-bar.

In particular, if the case involves an offense punishable by imprisonment of less than or exactly six (6) years, or a fine of any amount, or both, its revival has to be made within one (1) year.

If it involves an offense punishable by imprisonment of more than six (6) years, its revival has to be made within two (2) years.

If the State fails to revive it within the one or two-year time-bar, the dismissal of the case then automatically becomes permanent.

Such permanent dismissal amounts to an adjudication of the case on the merits.

Motion to revive the case vs. Court order reviving the case

But the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one or two-year time-bar is unsustainable.

Such interpretation is not found in the Rules of Court.

To permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply.

Remember that most if not all of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions.

They could not as a consequence be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time.

It is also possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.

Conditions for the time-bar to apply 

For the time-bar to apply, the following conditions, which are also the essential requisites for the provisional dismissal of a criminal case, must of course be met:

(a) The prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal;

(b) The offended party is notified of the motion for a provisional dismissal of the case;

(c) The court issues an order granting the motion and dismissing the case provisionally; and,

(d) The public prosecutor is served with a copy of the order of provisional dismissal of the case.

Reckoning period of the time-bar

The one or two-year time-bar is reckoned from the service of the order of provisional dismissal on the public prosecutor who has control of the prosecution.

The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order.

If the offended party is represented by a private counsel, it is reckoned from the time the counsel was actually notified of the order.

When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his given address.

[References: Section 8, Rule 117 of the Rules of Court, People of the Philippines vs. Dr. Claro Robles, G.R. No. L-12761, June 29, 1959, Arnold Vegafria vs. Judge Catalino Castañeda, Jr. et. al., G.R. No. 106522, October 23, 1992, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R. No. 149453, May 28, 2002, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, March 25, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 1, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 29, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, October 7, 2003, Ariel M. Los Baos, et. al. vs. Joel R. Pedro, G.R. No. 173588, April 22, 2009, Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial), William Co vs. New Prosperity Plastic Products, G.R. No. 183994, June 30, 2014, Atty. Segundo B. Bonsubre, Jr. vs. Erwin Yerro, et. al., G.R. No. 205952, February 11, 2015]

Can an employer dismiss a female employee from work due to marriage?

Let us say a young lady, who had just graduated from college, applied for work in a company.

When she applied, she was still single and had no plans of getting married anytime soon.

Besides, she had no reason to even consider getting married since she was not in a relationship with anyone.

Back then, all she had ever wanted was for the company to hire her.

During her interview, she was told that the company would only hire her if she agrees to the following conditions:

(1) She will remain single while working for the company; and,

(2) She will be automatically dismissed from work once she marries.

Because she really wanted to get hired and above all work for the company, she right away agreed.

Pleased with her approval, the company hired her on the spot. She was even asked to report for work the very next day.

But she later met, fell in love with and married someone.

Because of her marriage, the company dismissed her from work.

Dismissal due to marriage

Now this brings us to this very important question: Is her dismissal from work due to marriage legal?

The answer is No.

This holds true even if she agreed to remain single while working for the company and that she would be automatically dismissed from work once she marries.

This is so because it is unlawful for an employer to:

(1) Require as a condition of employment or its continuation that a woman employee shall not get married; or,

(2) Stipulate expressly or impliedly that upon getting married, a woman employee shall be deemed resigned or separated; or,

(3) Actually dismiss, discharge, discriminate or otherwise prejudice a woman employee by reason of her marriage.

Concealment of civil status

In a company with a policy against marriage, a female employee cannot be dismissed from work for concealing her civil status in the job application form.

She cannot be fired for making it appear she is single when she is really married.

Concealing it cannot be considered as willful or in bad faith.

Because she is only forced by the very same illegal company policy to misrepresent it for fear of being disqualified from work.

But since it is a clear act of dishonesty, she can be suspended for it to remove the impression that her act has to be condoned.

Besides, it is unfair for the employer if she will return to the company without any sanction for her act that is not totally justified.

Marriage as a condition for reinstatement

It is also unlawful for an employer to require a dismissed female employee to first get married before she can be reinstated.

This is so because it violates her right to choose freely a spouse and to get married only with her free and full consent.

Bona Fide Occupational Qualification

But if an employer is really keen on having a Marriage or No Marriage Policy, it has to show that the policy is a Bona Fide Occupational Qualification or BFOQ to be lawful.

For this policy to be considered as a BFOQ, there must be a reasonable business necessity for which no option exists other than this discriminatory practice.

In particular, an employer has to prove the following elements:

(1) The employment qualification is reasonably related to the essential operation of the job involved; and,

(2) There is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.

Policy against employees marrying employees from competitor companies

One perfect example of a BFOQ is the policy against employees marrying employees from competitor companies.

It is lawful for an employer to prohibit its employees from getting married with employees from competitor companies.

It is reasonable and as such a valid exercise of management prerogative because relationships of that nature might compromise the interest of an employer.

It is only aimed to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures.

Bear in mind that it has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors.

Policy against employees marrying co-employees

But it is different when it comes to the policy against employees marrying co-employees.

It is not a BFOQ.

It is unlawful for an employer to prohibit its employees from getting married with co-employees.

Unlike the policy against employees marrying employees from competitor companies, it is unreasonable and as such an invalid exercise of management prerogative.

This is so because it is based only on the mere fear that employees married to each other will be less efficient, which is evidently not a reasonable business necessity.

[References: Article 136 (now 134) of the Labor Code of the Philippines, Article 135 (now 133) of the Labor Code of the Philippines, Article 137 (now 135) of the Labor Code of the Philippines, Philippine Telegraph and Telephone Company vs. National Labor Relations Commission and Grace De Guzman, G.R. No. 118978, May 23, 1997, Duncan Association of Detailman-PTGWO and Pedro A. Tecson vs. Glaxo Wellcome Philippines, Inc., G.R. No. 162994, September 17, 2004, Star Paper Corporation, et. al. vs. Ronaldo D. Simbol, et. al., G.R. No. 164774, April 12, 2006, Christine Joy Capin-Cadiz vs. Brent Hospital and Colleges, Inc., G.R. 187417, February 24, 2016, Republic Act No. 6725, otherwise known as “An Act Strengthening the Prohibition on Discrimination Against Women with Respect to Terms and Conditions of Employment, Amending for the Purpose Article One Hundred Thirty-Five of the Labor Code, As Amended” (May 12, 1989), Republic Act No. 7322, otherwise known as “An Act Increasing Maternity Benefits in Favor of Women Workers in the Private Sector, Amending for the Purpose Section 14-A of Republic Act No. 1161, As Amended, and for Other Purposes” (March 3, 1992),  Republic Act No. 7600, otherwise known as “The Rooming-In and Breast-feeding Act of 1992” (June 2, 1992), Republic Act No. 9710, otherwise known as “The Magna Carta of Women” (April 14, 2009), and Republic Act No. 10151, otherwise known as “An Act Allowing the Employment of Night Workers, Thereby Repealing Articles 130 and 131 of Presidential Decree Number Four Hundred Forty-Two, as amended, otherwise known as the Labor Code of the Philippines”( June 21, 2011)]

When is the dismissal of an employee from work legal?

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“You’re fired!”

This is the famous line of American businessman (now United States President) Donald J. Trump in the reality TV series The Apprentice.

He usually pulls out and points a finger gun whenever he says it.

By finger gun, it refers to the hand gesture imitating a handgun.

Meaning of “You’re fired!”

When an employer tells an employee “you’re fired,” he is letting him know his employment is terminated.

He is telling him he is dismissed from work.

Employment-at-will

In the United States, a labor law rule known as “Employment-at-will” is being followed.

Because of the rule, an employer there can at any time dismiss an employee from work for any or no reason without adverse legal effects.

He can at any time tell an employee “you’re fired” for any or no reason with no liability.

No employment-at-will in the Philippines

Unlike in the United States, there is no employment-at-will in the Philippines.

This means an employer here cannot at any time dismiss an employee from work for any or no reason at all.

He cannot tell an employee “you’re fired” at will.

If an employer dismissed an employee from work at will, the dismissal will be deemed illegal.

Given that it is illegal, it will surely carry adverse legal effects with it.

Legal dismissal

For the dismissal to be legal, an employer must observe the substantive and procedural due process.

Substantive due process

By substantive due process, it means the dismissal must be based on any of the valid causes.

Valid causes for dismissal

In turn, the following are the valid causes:

(a) Just causes; and,

(b) Authorized causes.

Just causes for dismissal

By law, the following are the just causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and,

(e) Other causes analogous to the foregoing.

Authorized causes for dismissal

While the authorized causes, which are either for business or health reasons, are the following:

(a) Installation of labor-saving devices;

(b) Redundancy;

(c) Retrenchment to prevent losses;

(d) Closure or cessation of operation of the establishment or undertaking, unless the closure is for the purpose of circumventing the provisions of the Labor Code; and,

(e) Disease of an employee.

Basic distinction between just and authorized causes

The basic distinction between the valid causes for dismissal can of course be shown with ease.

The just causes are those directly attributable to the fault or negligence of an employee.

While the authorized causes are those brought about by the necessity and exigencies of business, changing economic conditions and illness of an employee.

Procedural due process

By procedural due process, it means compliance with the procedure for dismissal found in the Labor Code, its implementing rules, and settled jurisprudence.

Illegal dismissal

Failure to observe the substantive and procedural due process will of course make the dismissal illegal.

Effect of illegal dismissal

If the dismissal is illegal, an employee is entitled to the following:

(a) Reinstatement without loss of seniority rights and other privileges, or separation pay if reinstatement is no longer possible due to strained relations;

(b) Full backwages, inclusive of allowances;

(c) Other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement; and,

(d) Damages and attorney’s fees, if the dismissal is done in bad faith.

Separation pay in legal dismissal due to authorized causes

But when it comes to legal dismissal due to authorized causes, save for closure or cessation of operation of the establishment or undertaking due to serious business losses or financial reverses, an employer is required to pay an employee separation pay.

[References: Articles 292-302 (formerly Articles 277-287) of the Labor Code of the Philippines, Leonardo D. Suario vs. Bank of the Philippine Islands, et. al., G.R. No. L-50459, August 25, 1989, Reahs Corporation, et. al. vs. National Labor Relations Commission, et. al., G.R. no. 117473, April 15, 1997, King of Kings Transport, Inc., Claire Dela Fuente and Melissa Lim vs. Santiago O. Mamac, G.R. No. 166208, June 29, 2007, Eduardo Bughaw, Jr. vs. Treasure Island Industrial Corporation, G.R. No. 173151, March 28, 2008, D.M. Consunji, Inc. vs. Antonio Gobres, Magellan Dalisay, Godofredo Paragsa, Emilio Aleta and Generoso Melo, G.R. No. 169170, August 8, 2010, Billy M. Realda vs. New Age Graphics, Inc. and Julian I. Mirasol, Jr., G.R. No. 192190, April 25, 2012, Unilever Philippines, Inc. vs. Maria Ruby M. Rivera, G.R. No. 201701, June 3, 2013, Manila Polo Club Employees’ Union (MPCEU) FUR-TUCP vs. Manila Polo Club, Inc., G.R. No. 172846, July 24, 2013, Wenphil Corporation vs. Almer R. Abing and Anabelle M. Tuazon, G.R. No. 207983, April 7, 2014, Marlo A. Deoferio vs. Intel Technology Philippines, Inc. and/or Mike Wentling, G.R. No. 202996, June 18, 2014, Nancy S. Montinola vs. Philippine Airlines, G.R. No. 198656, September 8, 2014, and Ma. Charito C. Gadia, et. al. vs. Sykes Asia, Inc., et. a., G.R. No. 209499, January 28, 2015, DOLE Department Order No. 147-15, Series of 2015, titled “Amending the Implementing Rules and Regulations of Book VI of the Labor Code of the Philippines, As Amended,” and dated September 7, 2015.]