Newly-appointed Chief Justice Lucas Bersamin on Monday came up with
an order reorganizing all three divisions of the Supreme Court.
In Special Order No. 2623, the partial reorganizations shall be as follows:
First Division
Chairperson: Lucas Bersamin
Working Chairperson: Mariano del Castillo
Members: Francis Jardeleza, Noel Tijam, and Alexander Gesmundo
Second Division
Chairperson: Antonio Carpio
Members: Estela Perlas-Bernabe, Alfredo Caguioa, Jose Reyes Jr., and Rosmari Carandang.
Third Division
Chairperson: Diosdado Peralta
Members: Marvic Leonen, Andres Reyes Jr., Ramon Paul Hernando, and Rosmari Carandang as additional member.
In separate Special Order No. 2624, Bersamin designated Carandang as additional member of the third division.
source: Abogado
Sunday, December 2, 2018
Tuesday, September 11, 2018
EDITORIAL: ‘Leave the Court alone’?
Last week, speaking at her first flag ceremony at the Supreme Court
as the new leader of the judiciary, Chief Justice Teresita de Castro
warned both critics and the two other branches of government to leave
the Court alone.
At first glance, her words seem to be a restatement of conventional wisdom.
“The other members of the coequal and independent branches of the government should understand that based on our constitutional order, the decisions reached by the justices of the Supreme Court whether unanimously or by majority vote, must be respected,” she said. “We should be left alone to decide the fate of this institution without interference,” adding: “So we demand respect from the other members of the coequal and independent branches of the government.”
Could she have been referring to the obvious attempts by the President of the Philippines and the previous Speaker of the House of Representatives to intimidate the Court and its previous chief justice, Maria Lourdes Sereno?
It does not look like Speaker Gloria Arroyo will demand that De Castro pay a courtesy call on her, in the same way that
Rep. Pantaleon Alvarez tried to get Sereno to pay a courtesy call on him.
It also looks like De Castro and President Duterte share the same views; it does not seem likely that De Castro will receive a public challenge from the President, and a dare to impose martial law, in the same way that her predecessor did.
With her at the helm, even if only for less than two months, and with a majority of justices consistently voting in favor of the President’s legal positions, it does not look like a major official of either political branch will attempt again to browbeat the Court in public.
So what could De Castro have been referring to?
If anything, it was she who led the Court into a trap, the anti-Sereno hearings in the House, where the institutional dignity of the Court was greatly diminished.
It may be that this appeal, this demand for respect, is an attempt by the new chief justice to put some distance between her and the sordid events of the last several months.
But she did not stop there.
“I would like to say,” she also said, “that people outside would like to judge us from what they see from afar. But it is us the justices and the employees and officials of the Court who know what is happening inside the Supreme Court. And we should be left alone to decide for ourselves.”
There is no question that the members of the Court must reach decisions by themselves. Any attempt by any official of the executive or legislative branches of government, or indeed of any outside party, to influence the decision-making of the Court outside of the legal processes is illegal and unethical.
There is a wisdom to the deliberate design of the judiciary as a nonpolitical branch of government.
But is this what De Castro meant?
The Court, of course, can never be left completely alone; the constitutional system of checks and balances assures that, with the executive wielding appointing power over its members, and the legislative branch allocating its budget, subject to the fiscal autonomy guarantee given to the judiciary by the Constitution.
What De Castro apparently refers to is public perception of Court decisions (“people outside would like to judge us”) and then contrasts that with insider knowledge (“it is us… who know what is happening inside”). Then she concludes by returning to her theme: “And we should be left alone to decide for ourselves.”
It seems what De Castro is really getting at is the undue, unaccounted or unmeasured influence of public opinion on judicial decisions.
In sum: People outside the Court judge the justices by what they see “from afar.” They should instead judge the Court by how “the justices and the employees and officials” decide.
This is a plea easy enough to understand, but at its core is a fundamental misunderstanding of the role of the Court and the rest of the judiciary in the democratic project.
The Court must decide according to “facts and the law,” that is true. But both the facts and the law must reflect reality. It is eminently the role of the public to impress this reality on the decision-making of the Court.
The justices can facilitate this process by observing the principle of transparency as much as possible; or they can ignore it altogether.
But there’s no escaping the pressure of public opinion; that’s democracy.
source: Philippine Daily Inquirer
At first glance, her words seem to be a restatement of conventional wisdom.
“The other members of the coequal and independent branches of the government should understand that based on our constitutional order, the decisions reached by the justices of the Supreme Court whether unanimously or by majority vote, must be respected,” she said. “We should be left alone to decide the fate of this institution without interference,” adding: “So we demand respect from the other members of the coequal and independent branches of the government.”
Could she have been referring to the obvious attempts by the President of the Philippines and the previous Speaker of the House of Representatives to intimidate the Court and its previous chief justice, Maria Lourdes Sereno?
It does not look like Speaker Gloria Arroyo will demand that De Castro pay a courtesy call on her, in the same way that
Rep. Pantaleon Alvarez tried to get Sereno to pay a courtesy call on him.
It also looks like De Castro and President Duterte share the same views; it does not seem likely that De Castro will receive a public challenge from the President, and a dare to impose martial law, in the same way that her predecessor did.
With her at the helm, even if only for less than two months, and with a majority of justices consistently voting in favor of the President’s legal positions, it does not look like a major official of either political branch will attempt again to browbeat the Court in public.
So what could De Castro have been referring to?
If anything, it was she who led the Court into a trap, the anti-Sereno hearings in the House, where the institutional dignity of the Court was greatly diminished.
It may be that this appeal, this demand for respect, is an attempt by the new chief justice to put some distance between her and the sordid events of the last several months.
But she did not stop there.
“I would like to say,” she also said, “that people outside would like to judge us from what they see from afar. But it is us the justices and the employees and officials of the Court who know what is happening inside the Supreme Court. And we should be left alone to decide for ourselves.”
There is no question that the members of the Court must reach decisions by themselves. Any attempt by any official of the executive or legislative branches of government, or indeed of any outside party, to influence the decision-making of the Court outside of the legal processes is illegal and unethical.
There is a wisdom to the deliberate design of the judiciary as a nonpolitical branch of government.
But is this what De Castro meant?
The Court, of course, can never be left completely alone; the constitutional system of checks and balances assures that, with the executive wielding appointing power over its members, and the legislative branch allocating its budget, subject to the fiscal autonomy guarantee given to the judiciary by the Constitution.
What De Castro apparently refers to is public perception of Court decisions (“people outside would like to judge us”) and then contrasts that with insider knowledge (“it is us… who know what is happening inside”). Then she concludes by returning to her theme: “And we should be left alone to decide for ourselves.”
It seems what De Castro is really getting at is the undue, unaccounted or unmeasured influence of public opinion on judicial decisions.
In sum: People outside the Court judge the justices by what they see “from afar.” They should instead judge the Court by how “the justices and the employees and officials” decide.
This is a plea easy enough to understand, but at its core is a fundamental misunderstanding of the role of the Court and the rest of the judiciary in the democratic project.
The Court must decide according to “facts and the law,” that is true. But both the facts and the law must reflect reality. It is eminently the role of the public to impress this reality on the decision-making of the Court.
The justices can facilitate this process by observing the principle of transparency as much as possible; or they can ignore it altogether.
But there’s no escaping the pressure of public opinion; that’s democracy.
source: Philippine Daily Inquirer
Sunday, November 27, 2016
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
facebook.com/jemy.gatdula
Twitter @jemygatdula
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
facebook.com/jemy.gatdula
Twitter @jemygatdula
source: Businessworld
Wednesday, August 3, 2016
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.
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
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:
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
Wednesday, July 27, 2016
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
Friday, July 22, 2016
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: (The Philippine Star)
Friday, July 8, 2016
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
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.”
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.
Sunday, June 26, 2016
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
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
Tuesday, May 3, 2016
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.
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
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 –
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
Friday, November 13, 2015
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.
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
Tuesday, October 27, 2015
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
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:
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.
Saturday, October 17, 2015
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
Thursday, October 15, 2015
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
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:
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.
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.
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
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