SC grants Enrile plea

Sandigan compelled to reinvestigate plunder, graft cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

•With whom did Enrile conspire;

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

source:  Manila Times

Pass the amended Corporation Code now

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

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

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

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

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

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

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

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

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

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

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

source:  Manila Times

Reforming the courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

source:  Businesworld - 

FINEX FOLIO
J. ALBERT GAMBOA

Enterprises need to fully use the function of trademarks

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

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

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

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

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

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

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

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

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

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

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

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

jmgaba@accralaw.com

source:  Businessworld

EDITORIAL - A national embarrassment

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

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

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

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

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

source:  Philippine Star

De Lima takes on CA justices over Binay case

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

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

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

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

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

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

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

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

source:  Business Mirror

Fiscal needs to review complaint before respondent can be sued

Dear PAO,
I filed a case for attempted homicide before the Office of the Prosecutor. I submitted my salaysay (affidavit), which I made to our police station, along with a medical certificate. The respondent in the case never showed up during scheduled hearings and did not submit a counter-affidavit. The fiscal said he has to review first the complaint before deciding. Is there a need for the review even if the respondent has not submitted anything? Is there a possibility that the case will be dismissed?
Antonio

Dear Antonio,
It is still necessary for the investigating prosecutor to review your complaint for attempted homicide before arriving at a resolution even if, as you have stated, the respondent did not show up during the scheduled hearings and did not submit his counter-affidavit.

After the filing of the complaint, the investigating prosecutor shall either dismiss it if he finds no ground to continue with the investigation or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents (Section 3, Rule 112, Rules of Court). His failure to attend the hearings and submit his counter-affidavit may be considered as a waiver of his right thereto.

The investigating prosecutor shall then determine whether there is sufficient ground to hold the respondent for trial. If he finds cause to do so, he shall prepare the resolution and information. He shall then certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. If the prosecution finds otherwise, he shall recommend the dismissal of the complaint (Sections 3 and 4, Rule 112, Rules of Court).

Based on the foregoing, the investigating prosecutor who is in charge of your complaint needs to review, first, your salaysay and the evidence that you have submitted in support thereof to determine if there is sufficient ground to hold the respondent for trial. In the course of the review, there is a possibility that the investigating prosecutor will dismiss the complaint if he finds no sufficient ground to form a well-founded belief that attempted homicide was committed against you by the respondent and that the latter should be held for trial.

We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.

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