Right of minority representation in local Philippine legislative bodies

International Parliamentary UnionRight of minority representation in legislative bodiesImage via Wikipedia

By Rey Cartojano
After partisan politics was supposed to be settled in the last May 10 elections, the next order of the day especially for local officials is the process of formulating and passing ordinances and other legislative work.
Section 50 of the Local Government Code sets the tone of this process by requiring the concerned legislative body, or Sanggunian, to adopt or update its existing internal rules of procedure starting its first regular session and within ninety (90) days thereafter. The adoption or updating of the internal rules of procedure is a critical process in local legislative work as it prescribes assignments in chairmanships and memberships of committees where most legislative work take place.  In addition, the internal rules of procedure can decisively prescribe the manner on how local legislative business will be conducted especially to favor the dominant political party or grouping.
A question of controversial impression is whether the internal rules of procedure can prescribe the process of appointments of committee chairmanships and memberships to favor only a dominant political party or grouping.  Stated directly, is it legal and in accordance with parliamentary practice to limit chairmanship and membership of all committees to the members of a dominant political party?
In answering queries for legal opinions especially covering issues in the interpretation of internal rules of procedures, the Department of Interior and Local Government (DILG) has always outlined the hierarchy of sources of authorities as follows: (1) 1987 Constitution; (2) Laws, especially the Local Government Code; (3) Court decisions; (4) Internal Rules of Procedures of the concerned Sanggunian; and (5) Parliamentary customs, usage and authors.
Suffice it to state at this stage that in international parliamentary customs and usage, and even bolstered by multitude of scholars and authors, the rule is settled that in a parliamentary set-up working through many committees, apportionment of committee chairmanships and memberships is allocated in proportion to the percentage of minority representatives vis-a-vis the total elected representatives. In fact, this formula is even followed by the present Philippine Congress in the distribution of committee assignments, which means that a congressman coming from minority parties and groups is always assured of a committee assignment, with or without him asking for it.
If we follow the hierarchy of authorities stated in many DILG legal opinions, it seems that minority representation in local legislative committees is doomed if the internal rules of procedure will favor committee appointments of chairmen and members highly dependent on the will of the majority, as the Philippine Constitution, laws and court decisions which are supposed to occupy higher level of authorities on the matter on minority representation do not yet have a clear coverage and resolution.
However, the International Parliamentary Union (IPU), a global organization of various state parliaments of which the Philippines is a member, cited Article 25 of the International Convention on Civil and Political Rights, which the Philippines ratified last 1986, on the right of the citizens to be heard through their elected representatives.  The right of the citizens to be heard through their elected representatives is interpreted to include the right of the said representatives to be given fair representation in parliamentary committees, which almost all parliaments in the world already are adopting.
By the doctrine of incorporation found in Article 2, Section 2 of the 1987 Constitution (where the Philippines adopts by incorporation international laws as part of our domestic laws), the International Convention on Civil and Political is already part and parcel of the laws of the land.  As such, then, it is submitted that any internal rules of procedure of any local legislative assembly in the Philippines which infringe on the right of minority political groups to be represented in parliamentary committees, for that matter, is not only illegal but not in accordance with internationally accepted parliamentary customs and practices.
At the end of the day, representative democracy is not all about what the majority wills government to be as it is about giving the right of other elected representatives to be heard, participate and check the process of legislation. 
 

The Case of President Noynoy Aquino's First Memorandum Circular

Noynoy Aquino's First Memorandum CircularTriple ExposureImage via Wikipedia

By Rey Cartojano

In what could be a bold and decisive move to weed from public service Presidential appointees of the previous administration, President Noynoy Aquino acting through his Executive Secretary Paquito Ochoa declared in Memorandum Circular No. 1 that "ALL CO-TERMINOUS THIRD LEVEL POSITIONS VACANT AS OF JUNE 30, 2010; DIRECTING ALL NON-CAREER EXECUTIVE SERVICE OFFICIALS (NON-CESO) OCCUPYING CAREER EXECUTIVE SERVICE (CES) POSITIONS TO CONTINUE TO PERFORM THEIR DUTIES AND RESPONSIBILITIES; AND EXTENDING THE SERVICES OF CERTAIN CONTRACTUAL AND/OR CASUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON JUNE 30, 2010."

The Memorandum Circular immediately created fears and apprehensions from many sectors, even as the new administration made its position clear on midnight appointments irresponsibly rushed by the past government.  But the issuance of Memorandum Circular No. 1 substantially missed the controversial issue of rescinding and nullifying midnight appointments, which is a popular move for the new Aquino administration, as public perceptions will easily confuse the main thrust of Memorandum Circular No. 1 as covering midnight appointments.

And so, as fast as an embarrassed cowboy, a shorter, revised and amended version of the said Memorandum Circular No. 1 was issued and now declared ALL NON-CAREER EXECUTIVE SERVICE POSITIONS VACANT AS OF 30 JUNE 2010, AND EXTENDING THE SERVICES OF CONTRACTUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON 30 JUNE 2010.  Aside from the fact that both Memorandum Circulars are identically numbered 1 issued by the same authority, probably a first in the history of Philippine executive directives,  despite differences in presentation, language and scope, Presidential spokesman Edwin Lacierda said Malacañang had to "fine-tune" the memorandum circular since it was supposed to affect only political appointees and not all non-career officials in government.  Even if were so, the administration could have easily issued a new Memorandum Circular revising Memorandum Circular No. 1, but to have two Memorandum Circulars denominated as No. 1 with the new MC No. 1 'fine-tuning' the old MC No. 1 is a poor display of draftsmanship, no less.  

Let us dissect the scopes of both new and old Memorandum Circular No. 1.  In the old MC No. 1, the first part of the caption speaks of third level positions whose appointments are coterminous with that of the appointing power, who is no other than the President of the Philippines.  These third level positions refer to positions in the Career Executive Service  that above division chief level that exercise managerial functions, to include the following positions of Undersecretary, Assistant Secretary, Bureau Director, Bureau Assistant Director, Regional Director, Assistant Regional Director and Department Service Chief.  While the said caption brings fear to those duly qualified CESO career officials appointed by the President, as it presumes that they could be included in the clause, the contents of the old Memorandum Circular No. 1 categorically covers only non-CESO officials appointed by the past President. as they are given at the latest until 31 July 2010 to vacate their posts.  In short, the old Memorandum Circular No. 1 actually respects the rights of CESO career officials appointed by the President, so that these officials will have security of tenure even beyond the term of the appointing past President.   

The most feared provision, especially for the lowly rank and file government employees, is the directive on contractual and casual government employees, numbering in the tens of thousands to vacate their posts at the latest on 31 July 2010.  The only consolation though, is if the contracts of these contractual and casual employees already expired last 30 June 2010.  Interestingly and quite obviously, if the contracts of these contractual and casual employees expired on a date after and other than 30 June 2010, they will not be included in the coverage of the old Memorandum Circular No. 1.

The ultimate question then is this:  what is the difference between the old Memorandum Circular No. 1 and the the 'fine-tuned' new Memorandum Circular No. 1?

While the 'fine-tuned' new MC No. 1 eliminated the excess verbiage of the old MC No. 1 on the scope of the termination of Presidential appointees who are non-CESO holders (i.e., if the official is a presidential appointee of the past administration but holds a CESO qualification, he is not covered), the said new 'fine-tuned' MC No. 1 did not include from its coverage casual government employees.  In effect, the new 'fine-tuned' MC No. 1 revised and amended the old MC No. 1 as it excludes from its coverage thousands of casual rank and file government employees.

Despite the confusion that the new and old of the same Memorandum Circular No. 1 brought to government officials and employees, it is too early to be harsh on a very young administration which appears to be serious and determined in cleaning the ranks of the government of appointments based on political expediency rather than qualifications.  From the many career and qualified officials, the clarification brought sighs of relief and hope.  But even so, it will be unforgivable if this same mistake of 'fine tuning' and double talk will be repeated for succeeding presidential directives in the future.  After all, and as the popular saying goes, you can fool the people some of the time, but not all the time.

 

Promoting Farmers' Rights in ADB's NRM Projects and Investments

Convention on Biological Diversity's Cartagena ProtocolImage by _ Krystian PHOTOSynthesis (wild-thriving) _ via Flickr

By Elpidio Peria

For quite some time, even as farmers are asked about the matter of natural resources management, some have said this as an issue for the governments only though it cannot be denied there are also active groups of farmers worldwide who have fought for the recognition of their rights, especially on the farmer's right to own the land, especially at the international level. Indeed, farmers have rights, not only from Art. 9 of the International Treaty on Plant Genetic Resources on Food and Agriculture of the FAO which talks about Farmers' Rights, but also from the UN Human Rights instruments, which includes the Right to Food.

With unabated biodiversity loss, climate change, lack of funds of developing country governments in Asia-Pacific, and the uncritical tendency to use modern biotechnologies to meet food security challenges, it is important to ensure and institutionalize the rights of farmers on matters relating to agriculture and natural resources management, more importantly on their rights to land, which is best concretized by the recognition of farmers’ right to land and to directly manage productive resources. This is the only way to ensure inclusive and sustainable growth.

In the context of a tendency to use modern biotechnologies to foster productivity improvements in the farm, the rights of farmers are also an important complement to the forthcoming international instrument shepherded into completion by the Convention on Biological Diversity's Cartagena Protocol, the Supplementary Protocol on Liability and Redress from Damage caused by GMOs - shielding the small farmers from liability or enabling them to claim for redress and compensation for crop loss and any untoward effects on their health and their farming environment.

A clear articulation of what the rights of farmers are also ensures that farmers, along with indigenous peoples and local farming communities, have clear rights to recognition as well as to benefit-sharing from the uses of plant and animal genetic resources. It also guarantees their participation and decision-making on matters that relate to their well-being, including access to financial and other resources and technology. Ultimately however, the rights of farmers to manage natural resources are best guaranteed by the recognition and institutionalization of their rights to land and productive resources in agriculture. This should be the fundamental principle where any initiative of ADB on NRM should stand. If the ADB cannot change its ways now to address this, then it should be considered a failure.

oOo

Natural Resources Management in ADB

Natural Resources Management in Asian Development BankImage by Virens (Latin for greening) via Flickr

By Elpidio Peria

Natural Resources Management or NRM is nowhere in the priorities or core areas of operation of ADB's Long-Term Strategy (2008-2020) or Strategy 2020. In that document, the environment is next to infrastructure, but it deals mainly with issues relating to urban environment issues, such as climate mitigation, livable cities, etc. The ADB's own Evaluation Report in 2008 however states that Strategy 2020 has placed the sustainable management of natural resources high in its agenda particularly as it seeks to achieve sustainable and inclusive growth in developing member countries (DMCs).

The ADB's Agriculture and Natural Resources Research (ANRR) agenda derives from ADB's own 1995 paper on Agriculture and Natural Resources Policy, which has the following items : (1) developing remunerative farming systems for poor farmers; (2) enhancing income and living standards of women; (3) improving sustainable management of agriculture and natural resources; (4) enhancing the productivity of agriculture; (4) enhancing the capacity of national agriculture research stations (NARS); and (5) conducting research on socioeconomics and public policy.

ADB's own assessment of the current challenges in Asia-Pacific include : population growth and rapid urbanization, increasing competition for resources, trade liberalization and globalization of markets, including globalization of agricultural food systems where the specific challenge now is on the ability of small producers to overcome the barriers posed by concerns of food safety and quality standards and inevitably, climate change. But the real key challenges of the region relate to increasing poverty and inequality, worsening environmental degradation, growing competition for resources and climate change, all of which are actually outlined as the challenges confronted by the Strategy 2020.

The ADB's Operations Evaluation Department in a 2008 report recommended that the current ANRR Policy must be updated, to align it more closely with Strategy 2020, in addition to giving the usual support for short- and long-term research, restoring the level of ANRR funding such that it will be at US$5million per specific technical assistance and lastly, to promote the wider utilization of ANRR products.

Before CSOs may be persuaded to support these recommendations at their face value, they, and the public in general should be aware of the following :

1) for now, ADB has categorized agriculture under "Other Areas of Operation" when the bulk of Asia's poor are in the agriculture sector (including fisheries and forestry). In the ADB's 2009 Annual Report, "Agriculture and Food Security" is categorized as "Cross-Cutting Initiatives", with only 7 loans allotted with a measly $443 million in 2009, including ANR as a whole. This is a dismal failure, considering that ADB targeted to increase its lending for agriculture and rural development to more than US$2 billion in 2009

If ADB is serious in actualizing its vision of “inclusive” economic growth, agriculture should be part of its Core Area of Operation. Even in the Environment core area, the key areas there have nothing to do with forestry, fisheries and agriculture which comprise the area/sector of "Natural Resource". It should not be that ADB's notion of environment be limited only to the urban environment, as that is not where the bulk of Asia-Pacific's poor live.

2) the ADB's support for short- and long- term research, and even restoring the level of ANRR funding at US$5 million should be reconsidered. The ADB's ANRR investments are virtually allocated to the International Agricultural Research Centres (IARCs), specifically the Consultative Group on International Agricultural Research (CGIAR).

What must be asked here is : what kinds of projects has the CGIAR implemented using the technical assistance money from the ADB? The CGIAR has been mainly responsible for the environmental, social and economic problems attributed to its active push for the Green Revolution and now with this recommendation that the bulk of ADB's support to the CGIAR are "restricted funds" - which means that the funds have to be spent exclusively for specific projects that the ADB agreed to fund, we have to ask, what are those projects that are allocated with "restricted funds" from the ADB? From ADB's own documents, we can see that most of these projects are in advanced rice genomics, biotechnology, seeds extension programs, etc. involving partnerships between the CGIAR and NARS and increasingly with the private sector.  The ADB believes that the future of ANRR should be based on public-private partnership (PPP), but this open push for this kind of collaboration should be reviewed. For example, IRRI's PPP, the Hybrid Rice Consortium, the public and the political leaders of the region should be made aware of the details of auctioning out the hybrid parentals to the highest bidders from the private sector.

Another aspect of this research support relates to the National Agriculture Research Systems (NARS), which the ADB does not fund directly, unless one of these NARS, like, for example, PhilRice, has a long-time partnership with the CGIAR or the project will involve co-implementation with the CGIAR. ADB says this is done to reduce project transaction costs and to avoid thinly spreading already limited resources for ANRR, thus they want to deal only with the CGIAR.

The problem with this set-up is that the NARS cannot then develop their capacity to do agricultural R&D tailored for the specific needs and situation of the country and their farmers; what is worse, they will now become eternally dependent on the CGIAR for expertise and technical capacity since that's the only way for them to access funds from the ADB.

3) The capacity building priorities on ADB's ANRR are on advanced genomics, applied genomics (marker development), and seeds extension training for farmers, which are what the CGIAR capacity building is all about. To address the concerns on the lack of participatory approaches in CGIAR research, ADB funded the Consortium for Unfavorable Rice Environments (CURE) in 2002 which uses participatory modes of problem identification and solution.  The ADB also boasts of supporting the CGIAR's project promoting zero tillage in wheat and rice production which they say has reduced the use of diesel by more than 50 liters per hectare, but silent on the increased use of herbicides in zero-till systems.

This kind of top-down capacity building priorities, palliative participatory approaches in agricultural research, and technology fixes to the problems of farmers should not be continued. It must be noted that it was the ADB that funded the development and promotion of hybrid rice seeds in the Philippines, Indonesia, Bangladesh, India, etc. under a program coordinated by IRRI.  It was ADB too that funded the Asia Maize Biotechnology Network in 1998 which bore the fruit of commercially introducing GM corn in the Philippines. These are projects that has leveraged private sector investments in rice, corn and wheat in Asia. Who has benefited from the foray of these giant companies, definitely not the poor farmers whose numbers have not been reduced.

The Non-Establishment Clause in the Debate in the Reproductive Health Bill

Non-Establishlishment Clause in Reproductive Health Bill Image via Wikipedia

By Elpidio Peria

           The Reproductive Health Bill (RHB) has encountered stiff opposition from religious groups, specifically the Roman Catholic Church (RCC), thus hindering its passage in the 14^th Congress of the Republic of the Philippines. With the incoming 15^th Congress set to resume its session this 26 July, there is guarded optimism among its advocates that this Bill will advance in the legislative mill, and inevitably hurdle all debates in and out of the halls of Congress, until it will finally be passed.

            Now, to prepare for the lengthy debates ahead, would it be possible to argue that this stiff opposition to the Bill by the RCC on moral grounds is tantamount to a violation of the non-establishment clause of the 1987 Constitution ? If the bill  is not passed, and the main reason for its non-approval is due to the fact that the arguments of the RCC has prevailed, then in effect, what has been made State policy is the view of the RCC,  which is not to have that bill passed. This is tantamount to establishing  the view of one religion over another, and given the fact that other religious groups in the country, from the Iglesia, UCCP, and even the Muslims are in favor of the RHB, clearly the non-establishment clause has been violated.

            Of course, advocates of the RHB kept on insisting on the constitutional principle of the separation of the  Church and State[1], but it seems they have not been that assertive about its operative mechanisms, the clauses on the free exercise of religion and the non-establishment of religion. This latter principle, also called the   non-establishment clause,  is also a constitutional command, with even more operative  force, as it is found in the Bill of Rights, which protects individuals from the great powers of the State while laying down specific obligations on what the State may not do to the individuals comprising the Philippine polity.

            Fr. Joaquin Bernas[2], S.J., has this to say about the non-establishment clause which is found in sec. 5 of the 1987 Constitution[3] :

            xxx..what non-establishment calls for is government neutrality in religious matters. Such             government neutrality may be summarized in four general propositions :

(1)   Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension;

(2)   government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension;

(3)   Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension;

(4)   Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.

            He also talked about the two values that the non-establishment  clause seeks to protect, which is voluntarism and the insulation of the political process from interfaith dissension.

            According to Fr. Bernas, voluntarism as a value is both personal and social. As a personal value, it is nothing more than the inviolability of the human conscience which is also protected by the free exercise clause. As a social value, it means that the growth of a religious group as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process  is insulated from religion and unless religion is insulated from politics.

            Interfaith dissension apparently refers to the State not taking any action that will promote religious discord or disharmony.

            In its essence, the non-establishment clause is government neutrality in religious matters. Neutrality here means, as Fr. Bernas already stated,  that : :

-        the government will not prefer one religion over another;

-        government funds will not be applied for religious purposes; 

-        government actions must not aid religion; and

-        government actions must not result in excessive entanglement with religion.

            Applying this to the debates in the RHB, it can be stated that, should the RCC bishops express a view against the RHB on the ground that it is against the teachings of the RCC, then all these aspects of government neutrality over religious matters  is violated.

            This is because if legislators agree to that kind of view of the RCC, the State has already preferred the view of the RCC over that of the other groups, which is tantamount to preferring one religion over another;   this stance of pro-life legislators must be respected as a matter of the free exercise of their religion but for it to be made state policy is tantamount to  aiding the view of the RCC  when the principle states that government action must not aid religion; this also results in government action being excessively entangled with religion.

            The  matter of government funds not being applied for religious purposes may not have any bearing in this discussion, but it can be argued that the current funding for a policy of providing materials on family planning at the LGU level is somehow applying the funds in pursuit of a religious purpose which is not to have any policy on reproductive health. This argument though needs further reworking and hopefully, further discussion should illuminate how it actually is violated in practice with the way things are at present, especially in matters relating to population development and policy.     

            Ultimately, the essence of the RHB is the right of the woman to decide what to do with her own body, in an exercise of her rights as a woman. It is also a developmental policy issue, how would the Philippines develop as a nation given its current state of resources, limitations and endowments. In all of these concerns, the Roman Catholic Church as well as other churches in the Philippines, can have a say on what their church-goers may do, and in the free exercise of their religion, the State cannot, and should not, interfere. However, the views of these religious groups should not be made into a State policy or a state policy should not contain any of these views as state policy is for all religious groups, even to those who don't profess to have any religions. It is certain that the Philippines, being a free and democratic society, will have its own share of religious skeptics and agnostics, even atheists, even if they may not be as vocal as the religious fanatics of all stripes, and all of them are entitled  to a State policy where no religious group is favored. This  is what the non-establishment clause should be about.

            Perhaps to state this as an expression of principle in the RHB, it may be stated thus:

            The State policy on reproductive health shall respect the  non-establishment clause of the 1987 Constitution. 

oOo

---

[1]    This is a distinct Constitutional principle found in sec. 6, Article II, Declaration of Principles and State Policies. The non-establishment clause is part of the Bill of Rights, in Article III, sec. 5, of the 1987 Constitution.

[2]    Bernas, Joaquin G.,  The 1987 Constitution of the Philippines : A Commentary, 1996 edition, Rex Book Store, Manila

[3]    Sec. 5 reads : No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

A GRASP ON SUCCESSION

Philippine Succession LawsImage via Wikipedia

By Beverly Caboteja
I’m looking through my notes at home , and I remember one subject, which a lot of people say , one of the most difficult yet boring subjects. It is SUCCESSION. I had no clear idea though of what kind of animal is this (not until I have studied it) because at one point, I know I have no property or rights to transfer, neither do I have the inheritance to succeed. But nobody knows what lies ahead. Maybe in the future, God willing, I can use this.
One author says that , Civil Law has and always will be one of the stabilizing factors in our daily lives. Part of this is succession. When we mention the word “succession” , some people get excited, some get nervous because basically we talk about inheritance and death, respectively. Of course, up to a certain degree we need to know about succession because the only way we can learn is through discussing it. Seldom do people talk about it because they say this is only for the rich and famous. True or not, the need still arises.
Art 777 of the Civil Code states that “ the rights to the succession are transmitted from the moment of the death of the decedent. At the moment of the decedent’s death , the heirs start to own the property , subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property is under administration.”
In its generic or general sense, succession is defined as the transmission of rights and properties from one person to another. In this sense, succession may be intervivos (where transfer is effective during lifetime of the giver) or mortis causa (after his death).
Succession in its legal definition, is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the value of the inheritance , of a person are transmitted through his death to another or others either by his will or by operation of law (Art. 774, New Civil Code). In brief, someone gets something from another who has died.
It is true that death transfers the rights to the succession- but only if the following conditions are present, namely:
1. That indeed there has been a death (either actual or presumed)
The law is silent in determining as to when a person is deemed considered dead. Technically, a person is considered dead when all its sensory faculties, bodily activities, heart and brain systems cease to function. Yet, under the law death is not limited to natural or physical demise. It includes presumed death occasioned by prolonged legal absence.
Legally, there are two (2) kinds of presumed death: the ordinary presumption caused by ordinary absence there being no danger or idea of death and an extraordinary presumption caused by an extraordinary or qualified absence. Here in the first presumption, if a person disappears, at the end of ten (10) years, he shall be presumed dead for the purpose of opening his succession (Art 390 of the Civl Code).
On the other hand, if he disappears after the age of 75, absence of five (5) years is enough in order that his succession may be opened. Note that death takes place on the last day of the period of absence required by law.
Moreover, under Art 391 of the Civil Code, there is extraordianary presumption because of great probability of death. The law says that the following shall be presumed dead for all purposes including the division of the estate among the heirs:
a. A person on board a vessel lost during a sea voyage or an aeroplane which is missing, who has not been heard for four years since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken part in war, and has been missing for four years;
c. A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Under these conditions, it has been held that the person is presumed to have died at the time of the disappearance, that is at the time the calamity took place and not at the end of four years. In other words, at the end of four years, the presumption will arise that death had occurred four (4)years before.
Furthermore, in both absences, succession is only of provisional character because there is always a chance that the absentee may still be alive. As such, it may be rebutted or proved as to when death actually occurred.
The problem here is, what if the absentee appears or returns? Knowingly, if the absentee appears or without appearing his existence is proved, “he shall recover his property in the condition in which it may be found and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent. “
2. That the rights or properties are indeed transmissible or descendible
As mentioned, inheritance includes all the property , rights and obligations of a person which are not extinguished by his death. Some rights are extinguished by death, some are not. To name few of those rights which are extinguished by death (and which therefore are not part of the estate), these include: family rights, marital and parental authorrity, support, action for legal separation, right to hold public office or private office or job. These rights have no inheritability , hence not transmissible mortis causa.
Thus, rights and obligations are generally transmissible unless purely personal.
3. That the transferee is still alive (no predecease), willing (no repudiation) and is capacitated to inherit.
It is noteworthy that if the heir instituted is incapacitated, repudiates the inheritance, or predeceases the testator, said heir inherits NOTHING. The same conclusion is reached when although the heir is ready, willling and able- the right is not transmissible or descindible- as for instance the right to support.
While it is true that a person has the right to transfer his or her inheritance but this only takes place by virtue of his will (i.e testamentary succession )or by operation of law (i.e. legal or intestate). Still, the act of such person is moderated by the law so as not to defeat the real intent or purpose of the law. So long as all the requisties concur or all requirements are complied with, succession may transpire.