Terminal justice at NAIA

Special prosecutors will be stationed at the Ninoy Aquino International Airport (NAIA) to conduct on-the-spot inquest proceedings particularly in cases of alleged illegal possession of ammunition by travelers transiting the country’s premier gateway.

Department of Justice spokesman Emmanuel Caparas said at least one prosecutor has been assigned since last week at the NAIA as part of measures put in place by the DOJ and the Manila International Airport Authority (MIAA) to curb an alleged bullet-planting (tanim-bala or laglag-bala) extortion scheme at the airport.

The assignment of special prosecutors followed a move by the Public Attorney’s Office, which offered immediate legal assistance to victims of the alleged extortion scheme.

“Through this, we are trying to avoid incidents where passengers are not allowed to board their flight because may suspicion na may dala silang bala [that they carry bullets],” Caparas said. “In the inquest proceedings, the prosecutor will find out the circumstances how the bullet was found and determine if the traveler was really a carrier or the bullet was placed by accident or deliberately planted,” he added in Filipino.

Caparas said the purpose of the on-the-spot inquest was not to determine probable cause but merely to make an initial assessment of the case. After the assessment, the traveler could be released and allowed to board his or her flight.

But in case the assessment leads to the filing of a formal complaint, the traveler will have to face the charge once he returns to the country.

The DOJ spokesman said more meetings would be held to further streamline the plan.
Caparas, moreover, said a National Bureau of Investigation (NBI) task force will submit on Monday its findings on the alleged extortion scheme.

He added that the task force had actually submitted a preliminary report but it remains “inconclusive.”

Boiden Ballalo, an overseas Filipino worker (OFW) who was apprehended at NAIA Terminal 1 for possessing a .22 caliber bullet, was allowed to leave for Taiwan after the case filed against him for illegal possession of ammunition was dismissed.

Ballalo was intercepted by Office of Transport Security screeners after an X-ray image showed a bullet in his wallet.

According to Rose Ballalo, wife of the OFW, her husband finally left Manila onboard a China Airlines flight for Taipei. She said if not for the Public Attorney’s Office (PAO) intervention and the help from the Volunteers Crime Against Corruption, Boiden might have been charged.

Also on Friday, two more passengers were apprehended for possessing bullets. The Philippine National Police Aviation Security Group (Avsegroup) did not identify the passengers, but said they are under questioning.

According to the Avsegroup director, Chief Supt. Pablo Francisco Balagtas, a passenger headed for Hong Kong was caught at  NAIA Terminal 3 when a screener noticed something resembling a bullet inside her bag. The bag later yielded a 5.56 bullet which the woman said was her anting-anting (amulet).

The other was a male passenger bound for Puerto Princesa who was intercepted at NAIA Terminal 4. The bullet was found in his handcarried bag.

source:  Manila Times

Only SC can dismiss cases vs lawyers under new rules

MANILA, Philippines — Now, only the Supreme Court could dismiss complaints against lawyers.

This after the high court revised rules on the discipline of members of the bar, directing the Integrated Bar of the Philippines (IBP), the organization of all lawyers in the country, to revise its internal rules on administrative cases in accordance with the amendment.

“The power to dismiss a complaint against a lawyer rests solely with the Supreme Court and cannot be delegated to the IBP,” said the high court in a statement on Tuesday.

In amending Rule 139-B of the Rules of Court, the high court limited the IBP’s power over administrative cases to making recommendations upon hearing, unlike before when the organization could dismiss complaints at its level.

With the amendment, only the Supreme Court can dismiss a case against a lawyer or impose penalties.

“Section 5 of Bar Matter No. 1645 now only grants the IBP recommendatory powers: “[i]f the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the Investigator will recommend to the Board of Governors the dismissal of the complaint,” the high court said.

The high court said such an amendment was pursuant to Article VIII, Section 5(5) of the 1987 Constitution, which has vested upon the high court “the power to promulgate rules concerning the admission to the practice of law.”  SFM

source: Philippine Daily Inquirer

Indigents exempted from paying filing fees

Dear PAO,
I am writing for my mother whose date of birth was erroneously entered in their marriage contract. To correct the date, my mother has to file a Petition for Correction of Entry in the Office of the Local Civil Registrar. Is there a chance that my mother can be exempted from paying the fees for the filing of the petition?
Chloe

Dear Chloe,
The enactment of Republic Act (R.A.) No. 9048 simplified the process of correcting erroneous entries in the civil registry, which are regarded as typographical or clerical errors. Civil registrars and consul generals were authorized by the said law to correct these erroneous entries. This is according to Section 1 thereof, which was amended by R.A. No. 10172, which reads as follows:

“SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.”

Assuming that the error in your parents’ marriage contract is clerical or typographical error, indeed a petition before the Local Civil Registrar may be filed to correct the same. However, a fee shall be collected before the petition is acted upon by the said officer. To be exempt from the payment of the said fee, it must be proven that the petitioner is indigent. This is according to Section 8 of the said law as amended by R.A. Act No. 10172,which provides:

“SEC. 8. Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee.

xxx”

In the same vein, an indigent petitioner refers to a destitute, needy and poor individual who is certified as such by the social welfare and development office of the city/municipal government. (2.7, Rule 2, Administrative Order No. 1, Series of 2001, Rules and Regulations Governing the Implementation of Republic Act No. 9048)

Based on the foregoing discussion, to be exempted from paying the required filing fee for the abovementioned petition, your mother has to prove that she is indigent. This can be done through a certification to be issued by the local social welfare and development office in your locality, certifying among other things that your mother is indigent.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

By the SC, not by the UN

The United Nations (UN) Working Group on Arbitrary Detention (WGAD) was widely reported to have opined that “the detention of former President [Gloria Macapagal] Arroyo (GMA) was arbitrary and illegal under international law … with an enforceable right to compensation.”

Bail denied. Commenting on this opinion obtained by international celebrity lawyer Amal Alamuddin Clooney, Communications Secretary Herminio Coloma Jr. said that GMA “has been accorded due process and has availed herself of various legal remedies … in Philippine courts, which have sole jurisdiction to decide on such matters.”

And may I add that the controversy is about a mere “opinion” of a UN “working group” which does not have the coercive power of a treaty, or a customary international law, or a decision made after trial and hearing of an international tribunal like the International Court of Justice, or the International Criminal Court, or of the International Tribunal for the Law of the Sea, where the Philippine claim in the West Philippine Sea is being heard.

GMA faces two major suits: (1) electoral sabotage, a capital offense, in the regional trial court (RTC) of Pasay for her alleged role in the manipulation of the 2007 election results in Maguindanao, and (2) plunder, also a capital offense, in the Sandiganbayan (SBN) for her alleged participation in the illegal use of P366 million in funds of the Philippine Charity Sweepstakes Office (PCSO).

She was granted bail by the RTC (affirmed by the Court of Appeals) because the prosecution failed to prove that “the evidence of guilt is strong.” However, the SBN denied her plea for bail in the PCSO case.

After the prosecution finished presenting its evidence in the PCSO case, the defense filed a “demurrer” on the ground that the evidence presented had failed to prove GMA’s guilt beyond reasonable doubt.

Demurrer also denied. However, a Special SBN Division of five, voting 3-2, denied the demurrer and ruled that the prosecution has proven her guilt beyond reasonable doubt, and asked her to present countervailing evidence. Otherwise, she would be at risk of conviction.

Significantly, and this was noted in the WGAD opinion, the demurrer of her four coaccused (former PCSO chair Manuel Morato, former PCSO board members Raymundo Roquero and Jose Taruc, and former Commission on Audit chair Reynaldo Villar) was granted, resulting in their acquittal.

The charge against another coaccused, former PCSO chair Sergio Valencia, was downgraded to malversation. Since this is not a capital offense, he was allowed to post a bail bond of P500,000. Only GMA and another coaccused, former PCSO executive Benigno Aguas, were neither acquitted nor granted bail.

Failing in her bid for demurrer and bail, GMA filed a motion in the SBN to change her confinement from the Veterans Memorial Medical Center to her home at 14 Badjao Street, La Vista, Quezon City. In view of the recent WGAD opinion, she is renewing her plea for bail.

Equal protection. I believe, however, that more compelling than the WGAD opinion—which, as Coloma correctly pointed out, is not binding on our judiciary—is the recent Supreme Court decision (Ponce Enrile vs Sandiganbayan, Aug. 18, 2015) granting bail to Sen. Juan Ponce Enrile.

Bail was allowed, not because the prosecution (the Office of the Ombudsman) failed to present “strong” evidence of guilt, but because of (1) Enrile’s “fragile” health (uncontrolled hypertension, arrhythmia, coronary calcifications, and exacerbations of asthma-COPD overlap syndrome) and (2) advanced age (“already over 70 years old at the time of the alleged commission of the offense”).

Veering away from “strong evidence of guilt” as the only constitutionally-mandated ground to grant bail in capital offenses, the Court said that the SBN “arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial…”

True, this 8-4 decision was heavily criticized by the dissenting opinion of Justice Marvic M.V.F. Leonen. However, whether we agree with it or not, once affirmed to be final (through a denial of the pending motion for reconsideration), it becomes a binding precedent.

Citing the equal protection of the law, GMA’s lawyers could obtain bail if they can show that, like Enrile, she is not a flight risk because of her fragile health and advanced age.

Ineluctably, GMA could secure her longed-for temporary liberty because of that Supreme Court decision, not of the much-publicized WGAD opinion.

source:  

WITH DUE RESPECT 

By: Artemio V. Panganiban

Philippine Daily Inquirer

Prescriptive period stops once complaint is filed

Dear PAO,
I know that light offenses such as Slight Physical Injuries prescribe in two months. The period stops when a complaint in the barangay is filed. When then will it continue to run? 
Doro

Dear Doro,
The running of the prescriptive period of an offense stops from the moment the same is brought under the Katarungang Pambarangay. It will continue to run after the Certification to File Action or the Certificate of Repudiation is issued. This is according to Republic Act (R.A.) No. 7160 or the Local Government Code of 1991, which provides:

“Sec. 410. Procedure for Amicable Settlement. —

xxx xxx xxx

(c) Suspension of prescriptive period of offenses. — While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary: Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay.

xxx xxx xxx”

As can be gleaned from the aforementioned law, the running of the prescriptive period of an offense is suspended temporarily once the complaint is filed before the Barangay Chairman under the Katarungang Pambarangay. However, as likewise stated above, such suspension shall last for only 60 days. Beyond the said period, the prescriptive period shall continue to run even if no certification is i ssued yet.

It is worthy to mention at this point that a complainant may file a case, which falls within the jurisdiction of Katarungang Pambarangay, directly in court or other government agencies without having to undergo conciliation before the Barangay, under the circumstances as provided by Rule VIII (b), Rules and Regulations Implementing the Local Government Code of 1991, to wit:

“[b] Notwithstanding the foregoing rule, however, a complainant may institute proceedings directly in court or with the proper government office, in the following enumerated cases where urgent legal action is necessary to prevent injustice from being committed or further continued:

[1] In a criminal case where the accused was arrested without a warrant and is under police custody or detention, the criminal complaint or information may directly be filed by the offended party, police or fiscal with the proper court;

[2] A person illegally deprived of his rightful custody over another or a person illegally deprived of his liberty or one acting in his behalf may directly file a petition for habeas corpus with the proper court to regain custody or secure the release of such person;

[3] Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and

[4] Where the action may otherwise no longer be filed in court because it may be barred by the Statute of Limitations.” (Em- phasis Supplied)

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Using the public to become a listed company

IT is up to the officials of the Securities and Exchange Commission (SEC) to use their regulatory powers to apply the rules on preemptive rights. As the signing authority in approving amendments to the corporate charters of listed companies, they could withhold their imprimatur on any and all changes in a company’s Articles of Incorporation and Bylaws, and more so if these changes might “disenfranchise” the public.

Perhaps SEC Chairperson Teresita Herbosa and her four fellow commissioners know that without the public, there would have been no Philippine Stock Exchange (PSE) for them to regulate. Even if the PSE already enjoys self-regulatory status, Herbosa and company should be able to protect the investing public from being taken advantage by those who control the boards of corporations.

It is unfortunate that family-owned companies are only using the public for them to be able to get listed. Having become public which, of course, is a misnomer, and finding no use for public investors anymore, the majority stockholders use the boards that they dominate to buy the public out. The practice called share buyback literally means taking a company private again.

No board seat for public
By the way, it is about time the SEC initiate a study of listed companies to determine if they are also public as they claim to be. If the public really own at least 10 percent of a company’s outstanding shares, how come they are not represented in the board? Instead, those who control the board select the independent directors, who do not own enough number of shares to entitle them to a directorship and the compensation and other benefits that go with their selection.

Have Herbosa and her four associates in the five-man commission ever bothered to ask the beneficial owners of the shares held by PCD Nominee Corp.? How about the corporate stockholders of listed companies that give their addresses somewhere else? SEC officials should be able to form a group of their expert securities examiners to identify the owners of all these offshore companies for the information of the public.

It seems that depriving public investors of their preemptive rights is not the only problem that ails the Philippine stock market. The 10-percent minimum public ownership rule could even be worse than depriving the public of their rights to the issuance of additional shares. How can this very small percentage of ownership qualify a listed company to become public?

Herbosa’s commission
Incidentally, Herbosa could have become the chief securities regulator that she is perceived to be had she followed the directive of the Supreme Court in the case involving foreign ownership in Philippine Long Distance Telephone Co. (PLDT). Instead of investigating PLDT as the high court had suggested in its ruling, the SEC, led by Herbosa, simply allowed the company to issue 150 million voting preferred shares that are also voted by the Indonesian group.

The stock issuance was intended to dilute the holdings of foreigners in PLDT, such as the Indonesian-owned First Pacific Co. Ltd. which is based in Hong Kong, and NTT Group of Japan. These two stockholders hold a total of 99.2 million common shares, or 45.92 percent.

Why not revisit the SC ruling in the PLDT ownership case? Was allowing the issuance of 150 million voting preferred shares full compliance of the SC directive for the SEC to look into the foreign ownership issue in PLDT, “and if there is a violation . . . to impose the appropriate sanctions under the law”?

Apparently, the Herbosa-led five-person SEC regulatory body cleared PLDT of any equity ownership violation. This despite the SC’s ruling that, as provided for in the 1987 Constitution, the term capital “refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares and not to the total outstanding stock (common and non-voting preferred shares).”

esdperez@gmail.com.

source: Manila Times Column of EMETERIO SD. PEREZ

Supreme Court chooses decency, not expediency

IT is laudable and encouraging that the Supreme Court decided last week to give due course to the citizens’ petition for immediate action against officials behind the Disbursement Acceleration Program (DAP) and the misuse of the pork barrel or PDAF by asking the Ombudsman to comment on the petition.

In issuing the order, the Supremes were not hampered by worries about the feelings of the sitting president. Instead of voting for political expediency, it declared that decency in government must come first. For this is as it should be. And this is what our people have long been craving for in this country.

Specifically, the SC ordered Ombudsman Conchita Carpio Morales and Justice Secretary Leila de Lima to comment on the petition that seeks the issuance of a judicial order that will compel the Ombudsman to investigate the authors, proponents and implementers of the disbursement Acceleration Program (DAP) and pursue the investigation and prosecution of persons involved in the Priority Development Assistance Fund (PDAF) scam.

This is a huge step forward because until the SC decided to accept the case, we the people had been consigned to living with the seeming impunity (exemption from punishment) of high public officials for crimes in their official conduct, as no investigations and no charges were being filed against them despite decisions already made by the High Court on the illegality of the DAP and PDAF.

If anyone should be mad about the inaction, it is the SC because its decisions that are being ignored.

We have watched with frustration as Budget Secretary Florencio Abad has continued his rape of the budget, and sleeps well with his loot intact, while the public suffers from the miseries of misgovernance and government corruption.

With this case going forward, the nation now knows that President Aquino, regardless of his presidential immunity, will be investigated for his critical part in the depredations of the DAP and PDAF.

If the petition for mandamus is granted, the Ombudsman and the justice department must perform their statutory duty to probe Aquino for impeachment purposes, and to investigate Abad, Senate President Franklin Drilon and Speaker Feliciano Belmonte Jr. for their respective roles in facilitating such a massive looting of the public treasury.

There is no question here that the president can be investigated by the Ombudsman for “any serious misconduct in office.” His so-called presidential immunity does not exempt him because no one is above the law.

Within the high court, there is one thorn which the public should worry about. Among the justices, Junior Associate Justice Marvic Leonen showed once again his total subservience to President Aquino, who appointed him to his post after negotiating the infamous Comprehensive Agreementr on the Bangsamoro (CAB).

Leonen pushed for the immediate junking of the petition, but he was totally swamped by his colleagues who believe that Aquino, like all other officials, must be subjected to investigation – even if the investigation will be conducted by officials who owe their positions to him, namely Ombudsman Morales and Justice Secretary De Lima.

Justice Leonen misunderstands the institution that he is fortunate to be a member of. He has not realize yet that temperamentally and judiciously, the Court has decisively moved towards the affirmation of decency in government and the rejection of immorality in public service. It will consistently do the right thing when asked to rule on an issue vital to the public interest.

We pray he, like the Chief Justice, herself an Aquino appointee, learns to value the dignity and vital role of the Supreme Court in keeping our Republic and its institutions alive and well by being a fount of wisdom and civic virtue.

source:  Manila Times

After granting bail to Enrile, will Supreme Court do the same for Arroyo?

The Supreme Court has final authority on questions of law, including the Constitution. In the legal community, the Supreme Court’s pronouncement is law. And the gods of Padre Faura have spoken.

Associate Justice Lucas P. Bersamin declared that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.” The Supreme Court ruled, therefore, that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail.

Supreme Court Associate Justice Marvic Mario Victor F. Leonen vented in his dissenting opinion that the granting of bail to Sen. Enrile for humanitarian reason set a dangerous precedent.

The decision “will usher in an era of truly selective justice not based on clear legal provisions, but one that is unpredictable, partial and grounded on the presence or absence of human compassion,” wrote the most junior member of the Court.

Every court, including the Supreme Court itself, is now bound by that precedent. Bail will be granted if the poor health of the petitioner justifies it, even if not presented by the accused as the basis of his plea for provisional liberty. Sen. Enrile did not present his feeble health as argument for his release from detention.

However, those who expect human rights lawyers to swamp the courts with petition for bail for the hundreds of enfeebled septuagenarian and octogenarian languishing in penal colonies and city jails on the basis of the new law would be terribly disappointed. Justice Leonen said that the decision was ‘especially tailored’ for Enrile. I say it was “coutouriered” exclusively for former President Gloria Macapagal-Arroyo.

Take note of what Associate Justice Bersamin, who penned the decision, said of Sen. Enrile, “With his solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.” Only former president Gloria Arroyo among the many ailing lolos andlolas in prisons can be described similarly.

Sen. Enrile was confined for a year in a general hospital because his fragile health required continuous medical attention and care.

With the death of Andal S. Ampatuan, Sr. only Mrs. Arroyo, who has remained in custody in the Veterans Memorial Medical Center since December 2013, among the many aged and ill prisoners, is situated similarly.

Sometime in October 2010, retired Supreme Court Chief Justice Artemio V. Panganiban wrote in his Philippine Daily Inquirer column: “The sociological school of legal philosophy holds that to predict how case would be decided (by the Supreme Court), one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D). The personality of a magistrate includes intrinsic qualities like upbringing, education, relationships, etc. Stimuli refer to how he/she responds to externals like public opinion, peer pressure, religious leaders, medical condition, appointing authority, appointment sponsor, close friends, etc.”

That observation strongly suggested that justices of the Supreme Court sometimes decide not only on the basis of an objective interpretation of the law and the established facts but on personal considerations as well. The suggestion led me to believe that some of the landmark decisions of the Supreme Court under former chief justice Renato C. Corona were prompted by personal considerations.

Renato Corona would not have been chosen Chief Justice of the Supreme Court if a provision of the Constitution had been observed. Section 15, Article VII of the 1987 Constitution prohibits the President from making any appointment two months before the presidential election up to the end of his/her term. The presidential election was held on May 10, 2010 and Pres. Arroyo’s term was to end on June 30, 2010.

President-elect Benigno S. C. Aquino III had made known he was not going to replace retired Chief Justice Reynato Puno with Mr. Corona. So, Pres. Arroyo appointed Mr. Corona, her former chief of staff, Chief Justice on May 12, 2010, in violation of the Constitution as the appointment was made within the prohibition period.

The same associate justices set aside the Constitution so that Diosdado Ignacio “Dado” M. Arroyo, son of Mrs. Arroyo, can have a district to represent. The representative of the old 2nd District of Camarines Sur before Mr. Arroyo wanted to be back in Congress as the district’s representative. The Arroyo-subservient Congress broke up the district into two, one for Mr. Arroyo and the other for the former representative, Rolando G. Andaya, Jr.

That act of Congress was questioned before the Supreme Court as there would be disproportionate representation of Camarines Sur in Congress in contravention of the provision of the Constitution on equal representation. However, the Court upheld Congress. So, the district formerly represented in Congress by one congressman is now represented by two whereas the two larger districts are represented by only one each.

The older brother of Dado, Juan Miguel “Mikey” M. Arroyo, also had to have a seat in Congress, his old seat having been taken by his mother. The sycophants of Mrs. Arroyo in the Commission on Elections allowed him to represent Ang Galing Pinoy, the party-list of tricycle drivers and security guards, in Congress. Some groups questioned before the Court the eligibility of millionaire Mr. Mikey Arroyo to represent tricycle drivers and security guards. The Court quickly dismissed the disqualification complaint, saying that the case was outside its jurisdiction.

But the same Corona Court moved swiftly to stop impeachment proceedings against Ombudsman Merceditas Gutierrez following her petition for certiorari and prohibition, when impeachment is well within the province of the House of Representatives.

In 2011, Mrs. Arroyo, who had been charged with electoral fraud, was under a hold departure order (HDO).

On Nov. 15 of the same year, the Corona Court issued a temporary restraining order (TRO) against the HDO. Those who voted in favor of the issuance of the TRO were Chief Justice Corona, Associate Justices Bersamin, Arturo D. Brion, Diosdado M. Peralta, Presbitero J. Velasco Jr., Jose P. Perez, Martin S. Villarama Jr., and. Roberto A. Abad, all appointees of Mrs. Arroyo to the Supreme Court. Mr. Abad retired last year.

According to some nonpartisan lawyers, Chief Justice Corona should have called an en banc session to hear the oral arguments against the TRO before issuing it and making it immediately executory. The undue and unusual haste with which the TRO was issued raised the suspicion that the appointees of Mrs. Arroyo to the Supreme Court were really giving her the chance to flee.

Those who voted in favor of the precedent-setting ruling to grant provisional liberty to the accused for humanitarian reason were Associate Justices Bersamin, Brion, Peralta, Velasco, Perez, and Teresita Leonardo-de Castro (also an appointee of Mrs. Arroyo). Associate Justice Villarama was on leave.

In our democratic system of government the enactment of laws rests with the duly elected representatives of the people, the members of Congress. But eight lawyers unelected by the people have in effect enacted a new law seemingly to benefit a person, Mrs. Arroyo, to whom they are all beholden.

Oscar P. Lagman, Jr. is a member of Manindigan!, a cause-oriented group that takes stands on national issues.

oplagman@yahoo.com

source:  Businessworld

SC grants Enrile plea

Sandigan compelled to reinvestigate plunder, graft cases

The Supreme Court (SC) on Tuesday granted a petition by detained Sen. Juan Ponce Enrile to be given a Bill of Particulars or details of the cases filed against him before the Sandiganbayan to enable him to properly plead and prepare for his graft and plunder trial.

The High Court, sitting en banc, voted 8-5 in favor of Enrile’s petition that was filed in August last year, SC spokesman Theodore Te told reporters.

“In light of the court action, petitioner Senator Enrile is given the opportunity to confirm or change the plea that the Sandiganbayan entered for him, if he so wishes,” Te said.

The SC, however, failed to vote on Enrile’s petition for bail for lack of time as the justices had to hear the oral arguments in the Torre de Manila case.

With the granting of Enrile’s petition, the case will go back to the Office of the Ombudsman, in the process possibly compelling Ombudsman Conchita Carpio-Morales to reinvestigate the cases filed against the 91-year-old lawmaker.

Voting in favor of Enrile’s “Bill of Particulars” petition were Associate Justices Presbitero Velasco, Teresita Leonardo-de Castro, Arturo Brion, Diosdado Peralta, Lucas Bersamin, Jose Perez, Jose Mendoza and Estela Perlas-Bernabe while dissenting were Chief Justice Maria Lourdes Sereno and Associate Justices Antonio Carpio, Mariano del Castillo, Martin Villarama and Marvic Leonen.

Associate Justice Bienvenido Reyes was on leave, while Associate Justice Francis Jardeleza inhibited from participating in the case as he was the Solicitor General when the case was initially filed.

Named respondents in Enrile’s petition were Sandiganbayan Presiding Justice Amparo Cabotaje-Tang, and Associate Justices Samuel Martires and Alex Quiroz of the anti-graft court’s Third Division, which handles the senator’s plunder and graft cases.

Enrile was charged by the Office of the Ombudsman with one count of plunder and 15 counts of graft in connection with his alleged involvement in the so-called pork barrel scam, which was claimed to be masterminded by businesswoman Janet Lim-Napoles.

Enrile and his former chief of staff Jessica Lucila “Gigi” Reyes were accused of amassing P172.8 million in kickbacks from 2004 to 2010 through non-government organizations associated with Napoles.

Enrile told the High Court that the Sandiganbayan acted without, or in excess of, jurisdiction or with grave abuse of discretion, when it compelled him to plead to the criminal charges without granting his “Motion for Bill of Particulars.”

Under Section 9, Rule 116 of the Rules of Court, an accused has the right to move for a “Bill of Particulars” to enable him or her to properly plead and prepare for the trial.

Through the “Bill of Particulars,” an accused can ask for details of the case being lodged against him, including particular facts or pieces of information about the case, to ensure that the trial would be fair.

“The denial by the Sandiganbayan of petitioner Enrile’s ‘Motion for Bill of Particulars’ compels him to go to trial practically with one eye blindfolded,” the petition read.
Among the details of the case that Enrile wanted to know before he was arraigned were:

• Names of the specific people who delivered and received the over P172 million he
allegedly pocketed, as well as the dates and places where the money was delivered;

• Description of each project funded by Enrile’s “pork barrel” or Priority Development Assistance Fund, including details on who identified the projects, nature, location and costs of the projects;

• What particular Commission on Audit’s audits and field investigations were conducted to validate findings that Enrile’s PDAFs went to ghost projects;

• How Enrile allegedly took undue advantage of his government position to enrich himself at the expense of the people;

• Who amassed or acquired the accumulated amount of over P172 million;

•With whom did Enrile conspire;

•What particular acts constitute the “combination or series of overt criminal acts” that were done to accumulate the amount, what particular acts constitute the “series” and who among the accused committed these acts.

source:  Manila Times

Pass the amended Corporation Code now

SECURITIES and Exchange Commission (SEC) head Teresita Herbosa is pushing for the passage of Senate Bill 2194, which will introduce a number of amendments to the Philippines’ outdated corporation code, before the May 2016 elections.

If we are to disagree with Chairperson Herbosa at all, it is only to call for passage of this vital measure sooner than her target date next year.

SB 2194 principally adjusts the lifespan of corporate franchises by allowing extensions, in 25-year increments, beyond the current 50-year limit.

Other important changes the legislation would make to the corporation code include eliminating requirements for a minimum number of incorporators, streamlining the business name verification process, clarifying procedures for dissolving a corporation, and providing for a grace period for non-compliant corporations rather than requiring their immediate dissolution.

Other amendments are aimed at providing better protection for stockholders’ rights and reducing opportunities for fraud, such as giving the SEC the authority to order corporations to hold regular stockholders’ meetings if they fail to do so on their own, a common problem under existing laws.

The upgrade of the corporation code is critical for a couple of reasons. First, it brings Philippine corporate regulation into the 21st century by aligning our laws with common international standards. This will help make the Philippine business environment more competitive with the rest of the Asean in the upcoming regional integration.

The second and, perhaps, even more important reason is that the revised corporation code will greatly expand opportunities for “regularization” of Philippine businesses, particularly in the vital small- and medium-enterprise sector.

One of the chronic handicaps of the Philippine economy is that so much of it is “informal,” made up of businesses that are either entirely unregistered, or are operating under false pretenses (for example, so-called “dummy” or “paper” corporations).

While the vast majority of these businesses are productive, their potential is wasted. The government loses out on a vast amount of tax revenue – something that, if corrected, might encourage the Bureau of Internal Revenue to stop persecuting ordinary wage-earners in an attempt to make up the difference. The businesses themselves suffer even more from the lack of opportunity to grow. Being “informal” or a part of the “shadow economy,” they are obliged to operate in a high-risk, heavily cash-dependent environment, and are shut out from formal credit and other funding opportunities.

By reducing the number of required incorporators to as few as one or two people, a vast number of essentially subsistence-level small businesses will be able to become formal businesses; incorporation reduces their economic risk by separating business and personal assets, and gives them access to formal credit and opportunities to expand. It also will bring a large number of productive businesses into the mainstream economy where they can contribute – as they should – to the nation’s tax revenue base.

SB 2194 is not a ‘magic bullet’; we are not so naive as to believe it will completely solve the problems of fraud, inefficient regulation, and lost revenue overnight. But it is a giant step in the right direction. We urge the Senate to advance this important measure with as much speed as can be responsibly applied.

source:  Manila Times

Reforming the courts

A FORUM on “Speedy Trial and Court Decongestion Issues” will be sponsored by the Financial Executives Institute of the Philippines (FINEX) on July 3 at the Tower Club in Makati City.

Keynoted by Supreme Court Justice Diosdado M. Peralta, the breakfast forum is co-presented by the Judicial Reform Initiative, the Management Association of the Philippines, and the Institute of Corporate Directors. A limited number of participants can beACCOMMODATEDon a first come, first served basis. For registration, email crsalazar@finex.org.ph or call Cherry Basilio of the FINEX Secretariat at 811-4188.

This forum’s topic is very timely due to the massive number of unresolved cases in Philippine courts. For a country where the wheels of justice grind notoriously slow, unclogging the court dockets should be top priority of our judiciary.

In 2013, Supreme Court Chief Justice Maria Lourdes A. Sereno was the guest speaker at a general membership meeting of FINEX. At that time, she said the backlog in the lower courts was more than 600,000 cases, and she vowed to reduce this level by 30-50% over the next five years.

That same year, the National Statistical Coordination Board (now under the Philippine Statistics Authority) revealed the heavy caseload of regional, metropolitan, and municipal trial courts had reached 1,059,484 cases annually or an average of 4,221 cases per working day. Meanwhile, the number of judges in more than 2,000 lower courts nationwide has been decreasing, with their annual vacancy rate averaging 24.3%.

There’s no available data yet on the current status of pending cases in the judiciary, although Ms. Sereno has been pushing for the eCourt or electronic court program to automate the trial courts. Pilot testing is still being conducted in the regional and metropolitan trial courts of Quezon City, aimed to speed up the delivery of justice by reducing case processing time, eliminating sources of graft, and improving public access to court performance information.

Leslie Chew, a former senior district judge in Singapore’s subordinate courts, was a recent Manila visitor. After heading the civil justice division of the State Courts of Singapore, he joined KhattarWong law firm as senior counsel for its litigation and dispute resolution department.

As an advocate of international arbitration, Mr. Chew has participated in cases brought before the International Chambers of Commerce, the Singapore International Arbitration Center, and the United Nations Commission on International Trade Law. He also believes in alternative dispute resolution as an effective tool to decongest the judicial system.

I learned from him that Singaporean courts used to have a heavy caseload problem. Before Lee Kuan Yew appointed lawyer-banker Yong Pung How as Chief Justice of Singapore in 1990, it took six to seven years on the average for cases to get resolved in the subordinate courts. During his 16-year stint, Mr. Yong implemented reforms that drastically reduced the backlog of cases, including aggressive case management, non-adversarial court mediation, and extensive computerization.

Arbitration has been gaining ground in the Philippines since the passage of Republic Act (RA) No. 9285, otherwise known as the Alternative Dispute Resolution Law of 2004. Today, the arbitration practice in the country can be ad hoc, institutionalized, or specialized. 

For ad hoc arbitration, RA 9285 grants disputing parties the right to select arbitrators and to choose procedures that would govern the proceedings.

Publicly-listed company DFNN Inc. recently won in the arbitration proceedings it initiated against state-run Philippine Charity and Sweepstakes Office (PCSO). The case stemmed from PCSO’s termination of its equipment lease agreement (ELA) with DFNN in 2005. Pursuant to the ELA signed in 2003, PCSO had agreed to exclusively lease from DFNN the equipment and technology to design and develop a system for acceptance and processing of bets from personal communication device users nationwide.

An ad hoc arbitration panel composed of lawyers Victor N. Alimurung, Fulgencio S. Factoran, and Jose Tomas C. Syquia ruled that PCSO improperly terminated the ELA on misplaced or unfounded grounds, and ordered the government agency to pay DFNN the amount of P27 million in damages. The ELA would have enabled DFNN to provide wireless technology for lotto betting.

DFNN President Ramon C. Garcia, Jr. expressed his willingness to work with the incumbent PCSO management led by its new Chair Erineo S. Maliksi. “We would like to reiterate our commitment to partner with the PCSO in the critical task of nation building,” he said.

The result of this arbitration is indeed a triumph of the rule of law, thereby showcasing the transparency of the judicial system under the present dispensation.

J. ALBERT GAMBOA is chief financial officer of Asian Center for Legal Excellence and Senior Advisor of KSearch Asia Consulting, Inc.

source:  Businesworld - 

FINEX FOLIO
J. ALBERT GAMBOA

Enterprises need to fully use the function of trademarks

The contribution of micro-, small and medium enterprises (MSMEs) to our economy cannot be gainsaid. In the 2014-2015 Global Competitiveness Report of the World Economic Forum, we ranked 52 out of the 144 countries surveyed. Although we are behind our ASEAN neighbors Singapore (2), Malaysia (20), Thailand (31), and Indonesia (34), the study took note that the Philippines’ “gain of 33 places since 2010 is the largest” among all the 144 countries surveyed. It said that the main strengths of our “leapfrog” in the rankings lie in a sound macroeconomic environment, the size and sophistication of the market, and increasing efficiency and conduciveness of the finance sector to business activities. The Philippines has now been called a “breakout nation,” and is poised to be the new global economic miracle.

Based on statistics from the Department of Trade and Industry (DTI), there are around 780,000 business enterprises operating in the Philippines, with 96% or approximately 777,000 classified as MSMEs. Only around 3,000 are operating as large companies. Out of those 777,000 MSMEs, 92% or around 710,000 are categorized as micro-enterprises. A majority of the MSMEs are engaged in wholesale and retail (386,000); followed by manufacturing (112,000); hotels & restaurants (97,000); real estate & renting activities (47,000); and other community, social and personal services (44,000). In terms of employment, MSMEs generated more than 3.5 million jobs versus the two million jobs generated by large companies. Moreover, 25% of the country’s export revenues are attributable to MSMEs, with around 60% of the country’s exporters classified as MSMEs.

The government continues to create an environment conducive to the establishment and operation of MSMEs, what with the two primary laws that govern and regulate the promotion of MSMEs -- Republic Act No. 6977 or the Magna Carta for Small Enterprises (which was amended by Republic Act No. 8289), and Republic Act No. 9178 or the Barangay Micro Business Enterprises Act of 2002.

RA 9178 redefined the classification of business enterprises registered and operating in the Philippines as follows: (a) micro-enterprise, where capitalization does not exceed P3 million; (b) small enterprise, with a capitalization that exceeds P3 million but not more P15 million; (c) medium enterprise, with a capitalization that is more than P15 million but does not exceed P100 million; and (d) large enterprise, where capitalization is more than P100 million.

The law also encourages the promotion of micro-enterprises by extending fiscal and non-fiscal incentives (e.g., income tax exemption, exemption from the coverage of the minimum wage law, priority to a special window setup, technology transfer, production and management training, and marketing assistance programs).

RA 6977 mandates the government to help MSMEs by creating a conducive business environment, improving access to financing, providing adequate business support, providing training on entrepreneurship and worker skills, providing effective linkages between MSMEs and large companies, and strengthening government-private sector partnership. To oversee the programs for MSMEs, the MSME Development Council was created. The council developed the MSMED Plan 2011-2016, which serves as the blueprint for all projects geared toward the development of the MSMEs.

As a majority of the MSMEs are involved in wholesale/retail and service-oriented industries, effective branding/marketing strategies are essential. Data derived from the Intellectual Property Office of the Philippines (IPO) reveals a steady increase in the number of trademark applications filed by local owners -- from 7,048 in 2005 to 10,572 in 2011. In terms of our competitiveness ranking in the report, we ranked well in intellectual property protection at 87, as opposed to Thailand’s 101 and Vietnam’s 123.

The success story of Jollibee is a clear testament that the development of a sound brand strategy plays a crucial role in one’s business. Unfortunately, not all Filipino entrepreneurs possess this knowledge, or even how to pick the appropriate trademark for one’s goods and services. Not many local businessmen know that a trademark registration issued by the IPO is different from a business name registration issued by the DTI and from a corporate name registration issued by the SEC. More importantly, not many local entrepreneurs are aware that in the hierarchy of property rights, trademark protection is placed on a higher tier than the protection extended to a corporate name registration and business name registration.

With respect to choosing the correct brand, one must consider the brand or “look” that will come to carry not only the goods or services but the whole business as well. Factors such as availability for use in commerce, availability for registration, and inherent registrability of the chosen brand must be taken into account. One should conduct a trademark availability search using, among others, the publicly available searching tools of the IPO. Also, hiring the services of an intellectual property lawyer may be useful in order to secure a more informed opinion regarding a chosen brand or logo. These costs entailed during the initial business development stages may prove to be justified if, in the long run, litigation for trademark infringement, unfair competition, trademark opposition/cancellation cases are avoided, which are definitely more expensive and cumbersome.

Choosing the “right” brand is only half of the promise of success; how to market or make “notorious” one’s chosen brand is another matter. The traditional way of securing trademark registration from the IPO may not suffice to accommodate the marketing strategies available nowadays. With the prevalence of online and mobile communications, “going online” and “going mobile” are the way to go. In the report, the Philippines ranks better with most of its ASEAN neighbors in terms of degree of customer orientation (25) and availability of latest technologies (58). Coming up with a catchy Web site address (or domain name) and securing domain name registration are now business necessities. Moreover, apart from a regular trademark registration from the IPO and domain name registration secured from the domain name registry, one can also seek further registration of the same trademark as an Internet domain name also from the IPO. This type of IPO registration follows the same procedure as that of a regular trademark application filed with the IPO, only that the process is faster.

Opportunities for success among local MSMEs are limitless, provided that the foundation of sound business tools are laid early on. Selecting the right trademark to identify one’s business, goods and services is one of the factors toward attaining sustainability of any commercial undertaking. This promise of success to Filipino entrepreneurs is bright, especially to those who realize the importance of sound branding.

John Paul M. Gaba is a partner of the Intellectual Property Department of the Angara Abello Concepcion Regala & Cruz Law Offices.

jmgaba@accralaw.com

source:  Businessworld

EDITORIAL - A national embarrassment

Perhaps it’s better late than never, but it’s still dismaying to learn that it took 43 years to resolve a graft case in this country. The four public officials indicted are dead, prompting the Sandiganbayan to dismiss the graft case against them involving P71 million in behest loans granted by the Philippine National Bank during the Marcos dictatorship.

The three private defendants, meanwhile, can still appeal their conviction and sentence of six to 10 years. Will it take another 43 years before this case is resolved with finality? By that time, Integrated Shoes Inc. executives Leticia Teodoro, Marfina Singian and Gregorio Singian would surely have joined their deceased co-accused, PNB officials Domingo Ingco, Constantino Bautista and Tomas Teodoro.

Perhaps the martial law regime prevented the early prosecution and trial of the accused. But the case should firm up the resolve of those in charge of supervising the courts to overhaul the administration of justice. The lethargic pace of Philippine justice has become a national embarrassment.

Donor countries and multilateral agencies can be tapped for aid if funding is needed; several in fact have existing aid programs for Philippine judicial reform. A number of these donors have a direct stake in seeing improvements in the administration of justice; their investors complain about the problems that arise from dealing with a weak and arbitrary justice system in the Philippines. Failure of justice also breeds impunity among criminals and inspires short cuts to law enforcement.

In reforming the justice system, those in charge need not reinvent the wheel. Templates abound and there are enough models to serve as inspiration. Many countries, including several developing economies, have efficient and credible justice systems. Potential areas of delay are resolved before a case is brought to trial. Measures are implemented to discourage dilatory tactics and sanctions imposed for deliberately protracting litigation. If other countries can do it, there’s no reason why the Philippines can’t.

source:  Philippine Star

De Lima takes on CA justices over Binay case

JUSTICE Secretary Leila de Lima on Wednesday cautioned justices of the Court of Appeals (CA) from issuing further orders that would negate the suspension of Makati Mayor Erwin “Junjun” Binay Jr. without first conducting a hearing.

In an interview with reporters, de Lima insisted that the temporary restraining order (TRO) issued by the CA Sixth Division on March 16, 2014, can no longer be implemented for being moot  and academic since  the six-month preventive suspension order had been served by the Department of the Interior and Local Government (DILG) before the TRO was issued.

De Lima shared the same opinion with Ombudsman Conchita Carpio-Morales, a former Supreme Court associate justice, who stressed that the TRO has become moot as there is no more act to be restrained. “So, the status quo that the TRO sought to preserve was the vice mayor took his oath of office. That is the status quo, that is the situation right now,” she said.

But while de Lima admitted that the camp of Binay may avail before the CA of other legal remedies, she insisted the appellate cannot issue any order that would allow the the son of Vice President Jejomar C. Binay to reassume his post without setting the matter for a hearing first.

“I don’t want to say what legal remedies they can avail of, although in my letter I said they should go back to the Court of Appeals and secure the proper order. But any order now that must come out of the Court of Apeals has to be first heard or set for hearing and should not be an ex parte,” de Lima added.

“So any other order na hingin ng petitioner at puwedeng ibigay ng CA kung maniniwala silang may basehan cannot be just issued without hearing both sides particularly respondents through the Solgen [solicitor general],” she added.

In her legal opinion issued on Tuesday, de Lima explained that the TRO issued in favor of Binay “is without legal force and effect because it is already moot and academic, the acts sought to be restrained having already been performed and accomplished.”

“Whether the TRO seeks to restrain the issuance by the Ombudsman of the assailed joint order, or its implementation by the DILG, the same is already moot and academic, simply because before they were restrained, the Ombudsman had already issued the joint order and the DILG had already implemented the suspension of Mayor Binay,” she added.

source:  Business Mirror