A Supreme Court of limited powers

There is that temptation to treat the Supreme Court as a gathering of men and women of extraordinary wisdom.

Indeed, its reticence (well, at least until recently: I’ve always found it highly improper for Supreme Court spokesmen to expound on rulings; see my 2011 BusinessWorld article “Speechless spokesmen preferred”) and erudition of its members (four have foreign graduate degree law training: Sereno, Brion, Leonen, and Jardaleza; six placed in the top ten of the Bar exams: Carpio, Velasco, Brion, Bersamin, Leonen, and Jardaleza), contribute naturally to the Court’s deserved mystique.

And yet, for all that, the job of a Supreme Court justice is quite limited.

For all the education and self-declared profound knowledge of history, social sciences, mathematics, policy making, governance, or any other type of esoteric field out there, the mandate of a Supreme Court justice is actually quite modest: to determine the constitutionality of “any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation.”

And the forgoing can be done, meaning the authority of a Supreme Court justice comes into play, only when there are “actual controversies involving rights which are legally demandable and enforceable” brought before the Court.

Finally, the Supreme Court can function only as a Court; meaning it does not act through individual justices.

Granted, the Supreme Court has that ill-considered power to look at “grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” But that hardly serves as license for the Supreme Court or any of its justices to do what he or she wants.

The “grave abuse” clause essentially arose as a reaction to the Martial Law cases, where the “political question” doctrine was overstatedly perceived as limiting the powers of the Court.

From that piece of historical context should be added the fact that the Supreme Court is duty bound to look at the actual wording of the Constitution. Only in cases of real ambiguity can the Supreme Court look to other areas upon which to base its rulings: from the Constitution’s purpose (discernable from the Preamble, then Article II, and finally the overall theme and structure of the Constitution), to the intent of the framers therein (the people’s designated drafters being the Constitutional Commission members, whose debates and discussions accompanying the Constitution’s creation are available public record).

Constitutionalist (and former Chief Justice of the US Supreme Court) William Rehnquist pointed out that just “because a particular activity may not have existed when the Constitution was adopted, or because the framers could not have conceived of a particular method of transacting affairs, cannot mean that general language in the Constitution may not be applied to such a course of conduct.”

In other words, a Supreme Court justice cannot deviate from or substitute his own “wisdom” for that expressly or implicitly embodied in the Constitution.

The reason for emphasizing the Supreme Court’s limited powers is that ultimately the Court and its individual members are there merely to serve The Filipino People.

It is The Filipino People that authored the Constitution. The Supreme Court exists and possesses the power it has only because The Filipino People created it and allowed it such powers.

And when we say The Filipino People, we are talking here not only of those presently living but also those that passed on before us and those yet to be born.

Filipino constitutionalist Justice Isagani Cruz once wrote, “The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of the law by the pretenders to illegitimate power” (see his Philippine Political Law).

Indeed, as Rehnquist says, there is the temptation that “non-elected members of the federal judiciary [to] address themselves to a social problem simply because other branches of government have failed or refused to do so. These same judges, responsible to no constituency whatever, are nonetheless acclaimed as ‘the voice and conscience of contemporary society.’”

Yet, such should never be tolerated, much less allowed.

To paraphrase Rehnquist, The Filipino People “are the ultimate source of authority; they have parceled out the authority that originally resided entirely with them by adopting the original Constitution.”

Should the Supreme Court arrogate unto itself powers it never had, substituting its discretion over that of the Executive or Congress, creating policy through its rulings, then that is nothing else but a “judicial oligarchy.”

Jemy Gatdula is the international law lecturer at the UA&P School of Law and Governance and Executive Director of the Philippine Council for Foreign Relations.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com

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Twitter @jemygatdula

source:  Businessworld

CA reinstates Ombudsman prosecutor

The Court of Appeals on Wednesday ordered the reinstatement of the Office of the Ombudsman’s chief special prosecutor after she was sacked by the Aquino administration in connection with a plea-bargaining agreement entered into with a retired military official charged with plunder.

A 29-page decision of the CA Special 10th Division, dated July 22, 2016 and penned by Associate Justice Zenaida Galapate-Laguilles, ordered the reinstatement of chief special prosecutor Wendell Barreras-Sulit.

The CA ruled that Malacañang, during the stint of President Benigno Aquino 3rd and Executive Secretary Paquito Ochoa Jr., committed an error and usurped the authority of the courts with an order dismissing Sulit from her post as top prosecutor of the Office of the Ombudsman.

The decision dated July 18, 2013 and resolution dated December 6, 2013 of the Office of the President, dismissing petitioner Wendell Barreras-Sulit from the service, are hereby reversed and set aside,” said the ruling, which was concurred in by Associate Justices Marlene Sison and Mario Lopez.

Through a plea bargain, retired major general Carlos Garcia got away from a plunder charge filed by the Office of the Ombudsman

A lifestyle check had shown millions of pesos and pieces of property under Garcia’s name and members of his family, including a Trump Plaza condominium in New York.

He was also charged with money laundering, and the Anti-Money Laundering Council even moved to freeze assets of the Garcias.

The appellate court did not agree with the findings of Malacañang that the plea-bargaining deal with Garcia, which allowed the general to plead to a lesser offense, was unlawfully executed.

It said the plea-bargaining agreement was lawful because Sulit executed the same under direct supervision of then Ombudsman Marceditas Gutierrez.

Gutierrez and Sulit entered into the bargaining agreement with Garcia, asking to return assets to the Philippine government and allowing his plunder case to be downgraded to direct bribery charges.

Garcia returned P135,433,387.84 to the government under the agreement.

Gutierrez and Sulit said the plea-bargaining agreement was most advantageous to the government because it would be impossible to sustain a conviction.

The case filed by then Ombudsman Simeon Marcelo and Special Prosecutor Dennis Villa-Ignacio for plunder was allegedly weak.

This finding was upheld by the anti-graft court Sandiganbayan.

When Aquino assumed the presidency, however, he forced Gutierrez to resign from her post to be able to appoint a new Ombudsman, and then dismissed Sulit.

But the Court of Appeals stated that the plea-bargaining agreement was also approved by the Sandiganbayan, which makes the agreement aboveboard and within the process mandated by law.

The three-man court ruled that Malacañang then had no authority to determine whether the evidence presented before the Sandiganbayan was strong enough to sustain a conviction.

“The act of the OP (Office of the President) in determining the probative value of the evidence presented in the cases of plunder and money laundering in these administrative proceedings is not only misplaced and uncalled for but also constitutes an encroachment of judicial power. The authority rests solely upon the appropriate court—the Sandiganbayan in this case,” the ruling stated.

“We find it unfair to accuse petitioner Sulit of gross inexcusable negligence and bad faith in the performance of her function as Special Prosecutor as there was no substantial evidence that she was remiss in protecting the interest of the State. We believe that the [bargaining agreement] was the outcome of a prudent, reasonable and practical evaluation of the cases against Maj. Gen. Carlos Garcia, a solution that would best serve the interest of the nation and its people,” the decision said.

source:  Manila Times

By law, PAO can’t notarize commercial documents

Dear PAO,
I am a part-time real estate agent in my hometown. I was able to close a deal with a client who was looking to purchase a house and lot in a subdivision. To complete the transaction, we needed to prepare an absolute deed of sale and have it notarized. We thought about going to a Public Attorney’s Office (PAO) in our area so we can have it made and notarized for free, since I have heard that the PAO does not charge for its legal assistance. Before we were able to go to the PAO office, however, one of my co-agents informed me that the PAO does not prepare and notarize documents such as deed of sale. Luckily there was a notary public nearby so we just went there to have our documents made and notarized although we still paid him some fees for his services.

Because of this, and for purposes of future transactions in my work as a real estate agent, I want to confirm whether the PAO can make and notarize a deed of sale for us and whether it is free of charge. Thank you! 
Octavia

Dear Octavia,
As a background, the Public Attorney’s Office (PAO) is a government office that provides free legal assistance to the public not just by representing clients as its legal counsel in court hearings, but also through preparation of legal documents and administration of oaths related to the performance of its duties. As provided for in the PAO Operations Manual, in accordance with Republic Act (RA) 9406, also known as the PAO Law, public attorneys are also given the authority to perform non-judicial services that include documentation of legal documents and administration of oaths. This authority is specifically mentioned in Section 3 and Section 5 of Article X of the PAO Operations Manual, which states:

“Section 3. Documentation. Requests for the preparation of affidavits, notices and other documents must be attended to immediately.

Included in this service is administering oaths pursuant to Republic Act 9406. Requests for documentation services shall not be subjected to the merit test, and neither shall it be necessary to accomplish the Interview Sheet. Again, care should be taken that documentation services are availed of only by indigents. Hence, requests for the preparation of deeds of sale of real properties and other commercial documents shall be denied.”

xxxx.

“Section 5. Authority to Administer Oaths. – Public Attorneys shall have the general authority to administer oaths in connection with the performance of their official duty free of charge.”

As stated in the above-cited provisions, while the PAO has legal authority to prepare documents and administer oaths to notarize documents, this authority is not absolute. This is because these services, specifically the preparation of documents, are only for those who are indigents. And to qualify as an indigent, it is necessary to prove that one’s individual monthly net income does not exceed the following amounts:

1. If residing in Metro Manila, P14,000 a month;

2. If residing in other cities, P13,000 a month;

3. If residing in all other places, P12,000 a month (Section 3, Article II, PAO Operations Manual).

Furthermore, even if a person is qualified as an indigent, the aforementioned provision regarding free documentation services by the PAO expressly states that preparation of deeds of sale and other commercial documents is prohibited. This, therefore, answers your question as to whether the PAO can prepare and notarize a deed of sale since it clearly appears from the above-mentioned provisions that preparation and notarization of a deed of sale, which is a commercial document, is not allowed with the PAO. Thus, it can be seen here that while the other services of the PAO are generally open to indigents and free of charge, the handling of documentation and notarization of commercial documents are among those that cannot be accommodated by the legal services of the PAO in accordance with the law.

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.

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

SC dismisses Pasig judge in Delfin Lee case

MANILA, Philippines – The Supreme Court (SC) has ordered the dismissal of a Pasig regional trial court judge for issuing orders favoring detained Globe Asiatique president Delfin Lee in cases involving anomalous housing projects in Pampanga.

In a unanimous decision yesterday, the high court found Branch 167 Judge Rolando Mislang guilty of gross ignorance of the law and ordered his retirement benefits forfeited and barred him from government service.

The Department of Justice and the Home Development Mutual Fund (Pag-IBIG Fund) filed administrative charges against Mislang in connection with a temporary restraining order he issued that prevented the DOJ from investigating syndicated estafa and economic sabotage cases against Lee and several others allegedly involved in the P6.6-billion housing scam.

The SC adopted the findings and recommendations of the Office of the Court Administrator (OCA), which investigated the complaints and found that Mislang issued a writ of preliminary injunction and a status quo orders that failed to satisfy the legal requisite for their issuance.

“His persistent disregard of well-known elementary rules in favor of Lee clearly reflects his bad faith and partiality,” the OCA said.

The SC ordered Mislang’s dismissal from the service considering a similar serious infraction in the past and several other administrative cases filed against him since 2007.

The high court said it has already found Mislang guilty of gross ignorance of the law and ordered him to pay P20,000. He was also previously suspended by the SC for six months without pay after finding him guilty of the same offense.

source:  Philippine Star

Political color

The Supreme Court (SC) ruling in the case of former President Gloria Macapagal Arroyo (GMA) is not actually as controversial as to attract so much publicity. It is hugging the headlines for several days now only because of a misunderstanding of the decision-making process in the SC and because politics are being injected into it. Obviously, the parties rather than the issues involved are the major cause of several controversies surrounding it.

Immediately noticeable is the excessive media coverage of the promulgation of the decision. When the SC spokesman announced the 11-4 decision of the SC justices reversing the Sandiganbayan ruling on GMA’s demurrer to evidence and ordering her immediate release, people expected that she will be set free right away. This is a wrong impression.

 Actually, the announcement is only about the result of the SC Justices’ voting after deliberation on GMA’s petition and the dispositive portion of the decision. Her release will happen only when the main decision written by one of the 11 justices called the ponente concurred in by the 10 others, as well as the opinions of the four dissenting justices have been released. Obviously this will take several days more. This is the usual procedure in all other SC cases.

Perhaps, the misunderstanding and misimpression would not have occurred if the dispositive portion of the decision was announced simultaneously with the release of main decision certified by the SC Chief Justice. In this way, the promulgation and execution of the decision will be done simultaneously so as not to cause too much controversy. But the SC spokesman said that he announced the dispositive portion to avoid speculations and loose talks circulating on the decision. This reason is indeed plausible.

Speculations about this case have really been circulating especially on the parties involved. Actually this is a plunder case filed by the “People of the Philippines” represented by the Ombudsman against former President GMA together with other PCSO officials on the misuse of P366 million PCSO funds during her term which ended way back last 2010. It was allegedly filed right after Aquino III assumed office as one of his moves to impress the public that he was sincere and determined in his fight against graft and corruption.

But the timing of the filing and the Ombudsman who filed it somehow gave political color to the case. Conchita Carpio-Morales was the former SC Justice before whom Aquino III took his oath as President. She was appointed by Aquino III to replace former Ombudsman Gutierrez who was impeached apparently upon Aquino III’s instigation. The public perception then, until now, is that Aquino III kicked out Gutierrez as Ombudsman to clear the way for the filing of the plunder case against Arroyo; that such case is not really one of the moves to show Aquino III’s sincerity and determination to fight graft and corruption but a continuing political fight between Aquino III and Arroyo that has dragged until now when Aquino III’s term has already expired.

The current stance of Ombudsman Morales after the SC ruling in favor of Arroyo all the more confirmed these on-going speculations. Morales said that her Office is investigating another plunder case against Arroyo also arising from the latter’s alleged misuse of PCSO funds amounting to more than P50 million from 2004 to 2007. This alleged plunder case happened more than 12 years ago. The scandalously long delay not only shows inefficiency in the performance of her function as Ombudsman but also a denial of the right to speedy trial and disposition of the case. Based on well established jurisprudence enunciated in the case of Tatad vs. Ombudsman, this case will surely be dismissed. Morales should just forget about it. She will just be stressing how slow she has been doing her job.

Her single minded determination to go after Arroyo is more manifest in her reaction to the recent SC ruling on the plunder case against the latter for the alleged misuse of P366 million PCSO funds. She assails the SC decision granting Arroyo’s demurrer to evidence and insists that they were able to present strong evidence in the Sandiganbayan consisting 630 documentary exhibits and testimonies of witnesses reflected in 43 transcripts of stenographic notes. So she announced that they will appeal to the SC to reverse its ruling. This is an erroneous stance.

First of all the strength of the evidence is measured not by their quantity but more by their quality. No matter how many documents or witnesses are presented the evidence will not be considered strong enough if they do not prove with moral certainty and beyond reasonable doubt the guilt of the accused. In this case, the SC already found that the evidence presented by the Ombudsman is not adequate to sustain a finding of guilt.

Secondly, the Ombudsman can no longer asked for a reconsideration of the SC decision. This decision reversed the Sandiganbayan ruling denying Arroyo’s demurrer to evidence. Demurrer is a remedy given the accused to ask for the dismissal of the case after the prosecution has presented its evidence and rested its case. It is a tool afforded an accused precisely to expedite the disposition of the case. If the demurrer is granted, the accused is already acquitted. In this case, the Sandiganbayan denied Arroyo’s demurrer but the SC reversed such ruling and granted the demurrer. This means that Arroyo is already acquitted of the plunder charge against her. Once the court grants the demurrer, the grant amounts to an acquittal and further appeal on the judgment of acquittal amounts to double jeopardy and violates the constitutional right of the accused (People vs. Sandiganbayan 665 SCRA, 89). The Ombudsman should know this basic rule and should be the first one to observe it.

E-mail: attyjosesison@gmail.com

source:  A LAW EACH DAY (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) 

Seeking relief through application for replevin

Dear PAO,
I have been separated from my husband. When we were still together, he bought a car on instalment basis, and I acted as the co-maker. The car was registered in his name. After the end of my contract for employment overseas, I discovered that my husband obtained also a job overseas and the car was left with my brother-in-law. I would like to recover the car considering that it belongs to the conjugal property, and somebody advised me to file a case for replevin. Is this remedy correct?
Gariet

Dear Gariet,
An application for replevin is governed by Rule 60 of the 1997 Rules of Court. Section 1 of the law provides, “A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.”

Under Section 2 of same rule, the applicant must show by his own affidavit or that of some other person who personally knows the facts:

a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and belief;

c) That the property has not been distrained or taken for tax assessment or a fine pursuant to a law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that is exempt from such seizure or custody; and

d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

In your case, the application for replevin would not prosper. First, there must be a principal action for recovery of property before you can apply for replevin. Second, based on the above-enumerated requirements, it is essential that the applicant for replevin must be the owner of the property or must prove that he is entitled to its possession. From what you have stated in your letter, the car was registered in the name of your husband, thus, the latter is the proper party to file the case unless he will execute a special power of attorney authorizing you to file the case in his behalf. Your claim that the car belongs to the conjugal property has no connection with the issues in replevin.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Tax court denies PLDT appeal on jurisdiction grounds

THE COURT of Tax Appeals (CTA) has rejected a petition by Philippine Long Distance Telephone Co., Inc. (PLDT), ruling that a Makati court has no jurisdiction over the company’s dispute with Tuguegarao City over P2.455 million in unpaid franchise taxes.

In a 15-page decision promulgated June 17, the CTA, sitting en banc, voted 5-3 to deny PLDT’s petition against the CTA Second Division, which originally declared improper jurisdiction on the part of Makati Regional Trial Court Branch 132.

The CTA cited a similar case in Bataan which declared the proper venue to hear a dispute within the province to be the Balanga City RTC.

It added that though PLDT headquarters is in Makati, the Makati RTC cannot “order respondents to cease and desist from assessing and collecting... business tax in addition to the franchise tax based on the same gross receipts.”

The CTA cited Section 21 of Batasang Pambansa (BP) 129 which states that “injunctive writs issued by an RTC are enforceable only within the judicial region where such court belongs,” emphasizing that the correct lower court to handle the case is the RTC of Tuguegarao.

The ruling was written by Associate Justice Esperanza R. Fabon-Victorino and concurred in by Associate Justices Juanito C. Castañeda, Jr., Erlinda P. Uy, Cielito N. Mindaro-Grulla and Caesar A. Casanova.

Dissenting were Associate Justices Lovell R. Bautista, Ma. Belen M. Ringpis-Liban and Presiding Justice Roman G. del Rosario.

In 2006, the company was compelled to pay franchise tax in Cebu City as ordered by the Supreme Court amounting to P432,468.75 after it failed to make payments from 1999-2003.

PLDT challenged Cebu City in 2004 on the imposition of franchise tax, claiming it is exempt.

Hastings Holdings, Inc. -- a unit of PLDT Beneficial Trust Fund subsidiary MediaQuest Holdings, Inc. -- has a stake in BusinessWorld through the Philippine Star Group, which it controls.

source:  Businessworld

Notarization invested with substantive public interest

Dear PAO, 
My sister used to own a parcel of land in Taguig City (Metro Manila). She has no heirs because she was single when she died. One year after her death, I found out that there was a man who tried to transfer in his name the certificate of title in the name of my sister covering her lot. The basis of the application or cancelation of title in his name is a deed of sale allegedly executed between him and my sister. I also discovered that the document was notarized by a lawyer one year after the death of my sister.

Does the notary public have any liability for notarizing a deed of absolute sale even if the seller was already dead?
Pol

Dear Pol,
The notary public may be made liable for notarizing a document without requiring the seller to personally appear before him. This is in consonance with Section 2(b) of Rule IV of the 2004 Rules on Notarial Practice, which requires that “a person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.”

The Supreme Court in Agbulos vs Viray, A.C. No. 7350 (February 18, 2013) had expounded the roles of the notary public by stating that:

“To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.”

As aptly observed by the court in Dela Cruz-Sillano v. Pangan:

“The court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.”

The court has repeatedly emphasized in a number of cases the important role a notary public performs, to wit:

x x x Notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.

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