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

Terminal justice at NAIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

source:  Manila Times

Only SC can dismiss cases vs lawyers under new rules

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

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

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

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

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

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

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

source: Philippine Daily Inquirer