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