Child abuse (RA 7610); sexual abuse; G.R. No. 192760

G.R. No. 192760

Excepts:

"Violation of RA 7610

Section 5, Article III of RA 7610 provides:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(a) x x x

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3 for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be; Provided, That the penalty for lascivious conduct when the victim is under twelve (12) yeas of age shall be reclusion temporal in its medium period, x x x

(c) x x x

The elements of sexual abuse under Section 5, Article III of RA 7610 are the following:

1. The accused commits the act of sexual intercourse or lascivious conduct;

2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and

3. The child, whether male or female, is below 18 years of age.¹⁴

Under Section 32, Article XIII of the Implementing Rules and Regulations of RA 7610, lascivious conduct is defined as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with the intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.¹⁵

In this case, the prosecution established that Garingarao touched AAA’s breasts and inserted his finger into her private part for his sexual gratification. Garingarao used his influence as a nurse by pretending that his actions were part of the physical examination he was doing.Garingarao persisted on what he was doing despite AAA’s objections. AAA twice asked Garingarao what he was doing and he answered that he was just examining her.

The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult.¹⁶ In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will.¹⁷ In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her.

Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610.

Garingarao’s argument has no legal basis.

The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once.¹⁸ Section 3(b) of RA 7610 provides that the abuse may be habitual or not.¹⁹ Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610."

Credibility of witness; G.R. No. 192760

G.R. No. 192760

Excerpts:

"Credibility of Witnesses

The Court has ruled that in case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.¹⁰ In this case, both the trial court and the Court of Appeals found the testimony of AAA credible overGaringarao’s defense of denial and alibi. It is a settled rule that denial is a weak defense as against the positive identification by the victim.¹¹ Both denial and alibi are inherently weak defenses and constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the positive declaration by a credible witness.¹² Garingarao’s defense of denial and alibi must fail over the positive and straightforward testimony of AAA on the incident. Further, like the trial court and the Court of Appeals, we find incredibleGaringarao’s defense that the case was an offshoot of a heated argument he had with AAA’s father over the manner Garingarao was giving AAA’s medications. It is hard to believe that AAA’s parents would expose her to a public trial if the charges were not true.¹³ In addition, the prosecution was able to establish that, contrary to Garingarao’s allegation, both BBB and CCC were not in AAA’s room at the time of the incident."

Certiorari disguised to secure Injunction; G. R. No. 190795

 G. R. No. 190795

Excerpts:

"Petitioners have Chosen the Wrong Remedy and the Wrong Forum; the Real Motive for Bringing Petition was to Obtain an indefinite TRO, this the Court cannot Countenance

Section 1, Rule 23 of the ERC’S Rules of Procedure expressly provides for the remedy of filing a motion for reconsideration,viz:

A party adversely affected by a final order, resolution, or decision of the Commission rendered in an adjudicative proceeding may, within fifteen (15) days from receipt of a copy thereof, file a motion for reconsideration. In its motion, the movant may also request for reopening of the proceeding for the purpose of taking additional evidence in accordance with Section 17 of Rule 18. No more than one motion for reconsideration by each party shall be entertained.

Rule 65 of the Rules of Civil Procedure provides that a petition for certiorari may be filed when “there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law”. The “plain” and “adequate remedy” referred to in Rule 65 is a motion for reconsideration of the assailed decision.[30] Thus, it is a well-settled rule that the filing of a motion for reconsideration is a condition sine qua non before the filing of a special civil action for certiorari.[31] The purpose of this rule is to give the lower court the opportunity to correct itself.[32] However, this requirement is not an ironclad rule. The prior filing of a motion for reconsideration may be dispensed with if petitioners are able to show a concrete, compelling, and valid reason for doing so.[33] The Court may brush aside the procedural barrier and take cognizance of the petition if it raises an issue of paramount importance and constitutional significance.[34] Thus:

True, we had, on certain occasions, entertained direct recourse to this Court as an exception to the rule on hierarchy of courts. In those exceptional cases, however, we recognized an exception because it was dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy.[35]

Petitioners claim that they did not file any motion for reconsideration with the ERC “in order to prevent the imminent miscarriage of justice, that the issue involves the principles of social justice, that the Decision sought to be set aside is a patent nullity and that the need for relief therefore is extremely urgent”[36]; because they believe that the same would be a futile exercise considering that the ERC had blatantly disregarded the Supreme Court directive to consider the last increase of Meralco as provisional until ERC has taken action on the COA Audit Report;[37] and because “an appeal would be slow, inadequate, and insufficient.”[38]

They also claim that the direct resort to the Supreme Court resorted to by them is in order “to timely prevent a grave injustice to the 4.3 million customers of Meralco who stand to suffer by reason of a patently void decision by ERC which would result in additional monthly billing of at least half a billion pesos”;[39] because “time is of the essence”; and because “transcendental constitutional issues” are involved in this case.[40]

Petitioners further argue that their decision to go directly to this Court is justified “because of the number of consumers affected by the said Decision; because the amount involved in the controversy is so huge (P605.25 million [plus 12% VAT] additional billing per month); because it is violative of the provisions of EPIRA; because it is contrary to the constitutional provisions on social justice, and because it is in utter disregard of the COA Audit Report”.[41]

We do not uphold petitioners’ arguments on this matter.

In Cervantes v. CA,[42] this Court ruled:

It must be emphasized that a writ of certiorari is a prerogative writ, never demandable as a matter of right, never issued except in the exercise of judicial discretion. Hence, he who seeks a writ of certiorari must apply for it only in the manner and strictly in accordance with the provisions of the law and the Rules. Petitioner may not arrogate to himself the determination of whether a motion for reconsideration is necessary or not. To dispense with the requirement of filing a motion for reconsideration, petitioner must show a concrete, compelling, and valid reason for doing so, which petitioner failed to do. Thus, the Court of Appeals correctly dismissed the petition.

The general statements used by Petitioner to excuse their direct recourse to this Court are not the “concrete, compelling, and valid reasons” required by jurisprudence to justify their failure to comply with the mandated procedural requirements. In addition to this, the “urgency” of the resolution of matters raised by petitioners is negated, by the fact that rates approved by the ERC, in the exercise of its rate-fixing powers, are in a sense, inherently only provisional.

Furthermore, this Court finds that the real motive behind the filing of the present Petition is to obtain an indefinite TRO and this, the Court cannot countenance. Section 9, Rule 58 of the Rules of Court provides the rules for permanent injunctions, to wit:

Sec. 9. When final injunction granted.

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction.

Petitioners assert that this Court should issue a TRO because of the huge amount that would unduly burden the consumers with the continued application of the MAP₂₀₁₀ rates. According to petitioners, “if not stayed, the present financial hardships of 4.3 million MERALCO customers due to the global financial meltdown and the recent calamities in the country will surely further worsen.” Petitioners also claim that there is an extreme urgency to secure a TRO, considering that the assailed Decision is immediately executory.

The purpose of a TRO is to prevent a threatened wrong and to protect the property or rights involved from further injury, until the issues can be determined after a hearing on the merits.[43] Under Section 5, Rule 58 of the 1997 Rules of Civil Procedure, a TRO may be issued only if it appears from the facts shown by affidavits or by a verified application that great or irreparable injury would be incurred by an applicant before the writ of preliminary injunction could be heard.

If such irreparable injury would result from the non-issuance of the requested writ or if the “extreme urgency” referred to by petitioners indeed exists, then they should have been more vigilant in protecting their rights. As they have all been duly notified of the proceedings in the ERC case, they should have appeared before the ERC and participated in the trials.

We find that petitioners erred in thinking that the non-issuance of the TRO they requested would put consumers in danger of suffering an “irreparable injury”. But this asserted injury can be repaired, because, had petitioners participated in the proceedings before the ERC and the latter had found merit in their appeal, the undue increase in electric bills shall be refunded to the consumers.

All the other issues raised by petitioners in connection with the MAP₂₀₁₀ case are factual in nature and should be raised before the ERC not before this Court. Allegations and issues in connection with the rate increases under ERC Case No. 2008-018- RC and ERC Case No. 2008-004-RC, including the question of whether Meralco improperly exceeded the 12% maximum rate of return provided by law, are more properly to be disposed of in another pending case, G.R. No. 191150.[44]

Before finally disposing of this case, we deem it proper to warn the ERC that it cannot give a deadline to parties before it that it will not respect. Even though the ERC, as an administrative agency, is not bound by the rigidity of certain procedural requirements, it is still bound by law and practice to observe the fundamental and essential requirements of due process in justiciable cases presented before it."

Due process is opportunity to be heard; G. R. No. 190795

G. R. No. 190795

Excerpts:

"Where opportunity to be heard either through oral arguments or through pleadings is granted, there is no denial of due process. It must not be overlooked that prior to the issuance of the assailed Decision, petitioners were given several opportunities to attend the hearings and to present all their pleadings and evidence in the MAP₂₀₁₀ case. Petitioners voluntarily failed to appear in most of those hearings.

Although it is true that the ERC erred in prematurely issuing its Decision, its subsequent act of ordering petitioners to file their comments on Mallillin’s MR cured this defect. We have held that any defect in the observance of due process requirements is cured by the filing of a MR.[27] Thus, denial of due process cannot be invoked by a party who has had the opportunity to be heard on his MR.[28] Even though petitioners never filed a MR, the fact that they were still given notice of Mallillin’s filing of a MR and the opportunity to file their comments thereto makes immaterial ERC’s failure to admit their comment in the MAP₂₀₁₀ case. After all, petitioners’ allegations in their unfiled comment could have still, easily and just as effectively, been raised in the MAP₂₀₁₀ case by incorporating the arguments in the comment to be filed in the MR case. It must be remembered that the standard of due process impressed upon administrative tribunals allows a certain degree of latitude as long as fairness is not ignored.[29]

The opportunity granted by the ERC of, technically, allowing petitioners to finally be able to file their comment in the case, resolves the procedural irregularity previously inflicted upon petitioners.

We find that there has been no denial of due process and that any irregularity in the premature issuance of the assailed Decision has been remedied by the ERC through its Order which gave petitioners the right to participate in the hearing of the MR filed by Mallillin. "

Judicial delays; A.M. No. RTJ-11-2284

A.M. No. RTJ-11-2284

Excerpts:

"With respect to Judge Ayco, the Court stresses that the propriety or impropriety of the motion for reconsideration is judicial in nature and therefore, beyond the scope of this administrative proceedings. He however, cannot be excused for the delay in resolving complainants’ motion for reconsideration. Records show that the motion was deemed submitted for resolution on November 16, 2007,[27] and Judge Ayco denied the motion only on July 31, 2008. As found out by the OCA, it took eight months for him to resolve the said motion which was in violation of Rule 37, Section 4[28] of the Rules of Court requiring said motions to be resolved within thirty (30) days from the time of submission.

The public’s faith and confidence in the judicial system depends largely on the judicious and prompt disposition of cases and other matters pending before the courts.[29] Failure to decide a case or resolve a motion within the reglementary period constitutes gross inefficiency and warrants the imposition of administrative sanction against the erring judge.[30]

Under Section 9, Rule 140 of the Revised Rules of Court, undue delay in rendering a decision or order is considered a less serious offense. Pursuant to Section 11 of the same rule, such offense is punishable by:

1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or

2. A fine of more than P10,000.00 but not exceeding P20,000.00.

In Judge Angeles v. Judge Sempio Diy,[31] however, the Court mitigated the penalty to admonition considering that it was the respondent judge’s first infraction of the rules and in the absence of bad faith or malice. Following the said ruling, the Court approves the recommendation of the OCA to admonish Judge Ayco and sternly warn him that a repetition of the same or similar offense will be dealt more severely.

With respect to Sheriff Calsenia, the Court finds that he failed to strictly comply with the requirement of prior notice to vacate before demolition as required by the rules. Section 10(c) of Rule 39 of the 1997 Rules of Civil Procedure provides the procedure in the enforcement of the writ. To quote:

Sec. 10(c). Delivery or restitution of real property. – The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. [Emphasis supplied]

It is the duty of the sheriff to give notice of such writ and demand from the defendant (in this case, the complainants) to vacate the property within three days. Only after such period can the sheriff enforce the writ by the bodily removal of defendant and his personal belongings.[32] This notice requirement is anchored on the fundamentals of justice and fair play. The law discourages any form of arbitrary and oppressive conduct in the execution of an otherwise legitimate act.[33] Thus, a sheriff must strictly comply with the Rules of Court in executing a writ. Any act deviating from the procedure prescribed by the Rules of Court is tantamount to misconduct and necessitates disciplinary action.[34]

The Court recognizes the fact that sheriffs play a vital role in the administration of justice. In view of their important position, their conduct should always be geared towards maintaining the prestige and integrity of the court. In Escobar Vda. de Lopez v. Luna,[35] the Court explained that sheriffs have the obligation to perform the duties of their office honestly, faithfully and to the best of their abilities.[36] They must always hold inviolate and revitalize the principle that a public office is a public trust.[37] As court personnel, their conduct must be beyond reproach and free from any doubt that may infect the judiciary.[38] They must be careful and proper in their behavior.[39] They must use reasonable skill and diligence in performing their official duties, especially when the rights of individuals may be jeopardized by neglect.[40] They are ranking officers of the court entrusted with a fiduciary role.[41]They perform an important piece in the administration of justice and they are required to discharge their duties with integrity, reasonable dispatch, due care, and circumspection. Anything below the standard is unacceptable.[42] This is because in serving the court’s writs and processes and in implementing the orders of the court, sheriffs cannot afford to err without affecting the efficiency of the process of the administration of justice.[43] Sheriffs are at the grassroots of our judicial machinery and are indispensably in close contact with litigants, hence their conduct should be geared towards maintaining the prestige and integrity of the court, for the image of a court of justice is necessarily echoed in the conduct, official or otherwise, of the people who work thereat, from the judge to the least and lowest of the ranks.[44]

In this case, Sheriff Calsenia was not able to faithfully do what was required and expected of him. Thus, the Court agrees with the OCA that Sheriff Calsenia is guilty of simple misconduct. Under Section 52, B(2), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service, simple misconduct is punishable by suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal for the second offense. Considering that it is the first offense of Sheriff Calsenia, the Court hereby imposes upon Sheriff Calsenia the penalty of three (3) months suspension with stern warning that a repetition of the same or similar offense shall be dealt more severely in the future. "

Judge dismissed for abandonment of office; A.M. No. 07-9-214-MTCC

A.M. No. 07-9-214-MTCC

Excerpts:

"We have ruled that the absenteeism of judges or court employees and/or their irregular attendance at work is a serious charge that may warrant the imposition of the penalty of dismissal or suspension from service.³ Frequent and prolonged leaves without permission from the Court and abandonment of office have been considered gross misconduct. Gross misconduct is a serious charge under Section 8, Rule 140 and may be punishable by dismissal from service, suspension from office without salary and other benefits for more than 3 but not exceeding 6 months, or a fine of more than P20,000 but not exceeding P40,000.

In Leaves of Absence Without Approval of Judge Calderon,⁴ the Court considered Judge Calderon’s frequent and prolonged absence for almost a straight period of three years to be inexcusable. The Court concluded that Judge Calderon had habitually abandoned his sala. Judge Calderon was found guilty of gross misconduct and abandonment of office and was consequently dismissed from the service with forfeiture of all benefits.

In the present case, Judge Rabang has been absent without leave or AWOL for more than four years from the time he left for abroad in May 2007. There has been no word from him since then. Judge Rabang’s attitude betrays his lack of concern for his office. It is clear that Judge Rabang has abandoned his office and committed gross misconduct.

Judge Rabang is presumed to know his duties and responsibilities under the Code of Judicial Conduct. Rule 1.02, Canon 1 of the Code of Judicial Conduct mandates that a judge should administer justice impartially and without delay. Rule 3.05, Canon 3 of the same Code decrees that a judge shall dispose of the court’s business promptly and decide cases within the required periods. Rule 3.09, Canon 3 further provides that a judge should organize and supervise the court personnel to ensure the prompt and efficiant dispatch of business, and required at all times the observance of high standards of public service and fidelity.

In Yu-Asensi v. Judge Villanueva,⁵ the Court explained:

x x x the Canons of Judicial Ethics (which) enjoin judges to be punctual in the performance of their judicial duties, recognizing that the time of litigants, witnesses and attorneys are of value, and that if the judge is not punctual in his habits, he sets a bad example to the bar and tend to create dissatisfaction in the administration of justice.

The Code of Judicial Conduct decrees that a judge should administer justice impartially and without delay. A judge should likewise be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly administer justice. The trial court judges being the paradigms of justice in the first instance have, time and again, been exhorted to dispose of the court’s business promptly and to decide cases within the required period because delay results in undermining the people’s faith in the judiciary from whom the prompt hearing of their supplications is anticipated and expected, and reinforces in the minds of the litigants the impression that the wheels of justice grind ever so slowly.

Unauthorized absence and irregular attendance are detrimental to the dispensation of justice and, more often than not, result in undue delay in the disposition of cases; they also translate to waste of public funds when the absent officials and employees are nevertheless paid despite their absence.^6"

IBP road map - A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison - The Philippine Star » News » Opinion

IBP road map - A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison - The Philippine Star » News » Opinion

IBP road map A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 29, 2011 12:00 AM Comments (0)

Once in a while it is also useful to write about the men and women who practice law aside from the law itself as contained in the cases decided by the Supreme Court. Indeed, law practitioners play a vital role in establishing jurisprudence or “giving wise interpretations to laws and justly applying them to all cases as they may arise” in the administration of justice which is the main function of our courts, particularly the Supreme Court. Hence law practitioners are also considered officers of the court called upon to ensure that truth and justice prevail.

As officers of the court contributing to jurisprudence, law practitioners must therefore perform their functions with integrity and in the most competent, responsible and effective manner. Hence some legal luminaries of the bygone era led by the eminent Jose W. Diokno thought of integrating the lawyers into a well knit organization under the direct supervision of the Supreme Court. Thus was born the Integrated Bar of the Philippines (IBP) committed to the three-fold mission of (1) elevating the standards of the legal profession, (2) promoting the administration of justice and the rule of law, and (3) enabling lawyers to discharge their public responsibility more effectively.

In order to function smoothly and efficiently as a nationwide organization, the IBP is divided into 85 Chapters established in nine geographical regions specifically Northern Luzon, Central Luzon, Greater Manila Area, Southern Luzon, Bicolandia, Eastern Visayas, Western Visayas, Eastern Mindanao and Western Mindanao. Each chapter is headed by a Chapter President and each region is headed by a Governor.

Membership in IBP is a must for all lawyers in the Philippines. Hence as of today, there are already over 50,000 lawyers who are members of the IBP spread over the 85 chapters located in the nine geographical regions.

But like any organization, the IBP also encounters some rough sailing in its years of existence. Even if it is a well structured organization, disagreements still arise especially because its members are, by nature and/or training, tend to espouse different causes and to engage in heated arguments leading to some kind of division and strife which in the long run, however, turn out to be healthy and fruitful to the organization, making it stronger and more united.

One of these rough sailings happened only about two years ago when the term of the old board expired and no incoming board immediately took over because of, as usual, election controversies. To avoid the vacuum the SC had to step in and appointed a caretaker. A year later, the conflict was finally resolved by the SC when it sustained the election of the three governors who were not able to take their oath and then called for a secret balloting to elect the Executive Vice President (EVP) who will assume the Presidency. All the governors sustained the mandate given to Atty. Roan I. Libarios as the EVP in the previous controversial election. This unanimous mandate was considered by Atty. Libarios as “a vote for healing and unity in the IBP... a life changing tonic for unity and growth”.

And true enough, in this year’s national convention held in Subic, the IBP had the biggest turnout of participants. No election protest was filed and no controversy happened except that in Western Visayas no election was held because of some organizational issues now pending before the SC.

So last Tuesday, July 19, 2011 the new IBP Board of Governors who will serve for two years took their oath of office before the SC Justices at the SC Session Hall. They are: Atty. Roan I. Libarios, National President and Chairman; Atty. Denis Habawel, Governor for Northern Luzon; Atty. Olivia V. Jacoba, Governor for Central Luzon: Atty. Dominic C.M. Solis, Governor for Greater Manila Area; Atty. Vicente M. Joyas, Governor for Southern Luzon; Retired Judge Leonor L.Gerona-Romeo, Governor for Bicolandia; Atty. Manuel L. Enage Jr., Governor for Eastern Visayas; Atty. Israelito P. Torreon, Governor for Eastern Mindanao and Atty. Florendo B. Opay, Governor for Western Mindanao.

Even as the IBP has come out stronger and more united from the recent leadership crisis, Atty. Libarios, in his inaugural address, nevertheless pointed out that it is still saddled with problems, which he called the “lingering and daunting crisis of relevance” because many members and stakeholders, associate IBP “merely to IBP dues, MCLE Compliance Certificate and nothing more, except probably when they face charges before the Commission on Bar Discipline”.

Thus in consultation with the new Board and Officers, he drew up a five point reform agenda to “revitalize and reengineer the IBP by instituting structural and policy changes to make it more attuned to its mandate of service to the legal profession and the justice system”.

First is the creation of an IBP National Legal Resource Center housing and managing a state of the art “IBP Casebook”, an online interactive platform to serve as information hub for lawyers, featuring a super e-library and online publishing of legal materials, information updates, lawyers’ e-profile, private messaging, on line payment of IBP dues and subscriptions and on-line tracking of MCLE credits. The Center will also strengthen IBP’s capability to come up with sound positions on relevant legal and social issues and engage in meaningful advocacy and policy debates.

Second is the establishment of a National Policy Board of Accreditation with a two-fold task: to identify the specialty areas in the practice of law and accredit lawyers in that specialty area; and to accord honorific status to active legal practitioners who have earned reputation for competence and integrity.

Third is the transformation of the Commission on Bar Discipline (CBD) by enlarging its powers as to include integrity building and anti-corruption programs among lawyers including basic courses to retrain attorneys from becoming chronic violators of ethical rules. The CBD will thus become the “Commission on Integrity and Bar Discipline (CIBD)”.

Fourth is the establishment of peer assistance program under the Office of the IBP General Counsel to support members in career orientation and development, continuing job and career opportunities, welfare and insurance benefits, stress and health management and rehabilitation and direct legal assistance if they become victims of violent crimes.

Fifth is the elevation of the national legal aid office into a national support center for the 85 legal aid chapters to make them more capable in providing legal aid and in monitoring cases. The IBP will also launch a comprehensive OFW Legal Assistance Program to include, counseling, representation and setting up of help hotlines for OFWs and their families, legal diplomacy and advocacy and promoting awareness of the legal rights of Filipino migrant workers.

And so as it approaches its 40th year, IBP’s future looks promising indeed because it has a road map to provide direction to the members towards worthwhile goals.

* * *

E-mail at: json@pldtdsl.net

Stanford v. Roche: The Importance Of Precise Contract Drafting - Information Technology and Telecoms - United States

Stanford v. Roche: The Importance Of Precise Contract Drafting - Information Technology and Telecoms - United States

(click the link above)

Excerpt:

"The Supreme Court's recent decision in Stanford v. Roche draws attention to the pitfalls of imprecise contract language. The Supreme Court affirmed the ruling of the Court of Appeals for the Federal Circuit, which hung on the difference between competing assignment clauses, holding that Stanford University ("Stanford") did not possess exclusive rights to a technique for HIV testing developed by one of Stanford's research fellows."

World Prison Population List - www.prisonstudies.org/images/news_events/wppl9.pdf

www.prisonstudies.org/images/news_events/wppl9.pdf

Click link to download:

World Prison Population List

(ninth edition)

Roy Walmsley

Excerpts:

"Key points

More than 10.1 million people are held in penal institutions throughout the world, mostly as pretrial detainees/remand prisoners or as sentenced prisoners. Almost half of these are in the United States (2.29m), Russia (0.81m) or China (1.65m

sentenced prisoners). In addition more than 650,000 are in ‘detention centres’ in China; if these are included the overall Chinese total is over 2.3 million and the world total more than 10.75 million.

The United States has the highest prison population rate in the world, 743 per 100,000 of the national population, followed by Rwanda (c. 595), Russia (568), Georgia (547), U.S. Virgin Is. (539), Seychelles (507), St Kitts & Nevis (495), British Virgin Is. (468), Belize (439), Dominica (431), Bermuda (428), Grenada (423) and Curacao (422).

However, more than half the countries and territories (54%) have rates below 150 per 100,000.

The world population at mid-2010 was estimated at 6.9 billion (United Nations); if set against the world prison population of 10.1 million this would produce a world prison population rate of 146 per 100,000 (156 per 100,000 if set against a world prison population of 10.75 million).

Prison population rates vary considerably between different regions of the world, and between different parts of the same continent. For example:

• in Africa the median rate for western African countries is 47.5 whereas for southern African countries it is 219;

• in the Americas the median rate for south American

countries is 175 whereas for Caribbean countries it is 357.5;

• in Asia the median rate for south central Asian countries (mainly the Indian sub-continent) is 42 whereas for eastern Asian countries it is 155.5;

• in Europe the median rate for western European countries is 96 whereas for the countries spanning Europe and Asia (e.g. Russia & Turkey) it is 228.

• in Oceania (including Australia and New Zealand) the median rate is 135.

Prison populations are growing in all five continents.

Updated information on countries included in previous editions of the World Prison Population List shows that prison populations have risen in 78% of countries (in 71% of countries in Africa, 82% in the Americas, 80% in Asia, 74% in Europe and 80% in Oceania)."

June 2011 Philippine Supreme Court Decisions on Legal and Judicial Ethics « LEXOTERICA: A PHILIPPINE BLAWG

June 2011 Philippine Supreme Court Decisions on Legal and Judicial Ethics « LEXOTERICA: A PHILIPPINE BLAWG

June 2011 Philippine Supreme Court Decisions on Legal and Judicial Ethics

July 18, 2011Ramon G. SongcoLeave a commentGo to comments

Here are selected June 2010 rulings of the Supreme Court of the Philippines on legal and judicial ethics:

Administrative proceedings; quantum of evidence. It is a settled rule that in administrative proceedings that the complainant has the burden of proving the allegations in his or her complaint with substantial evidence. In the absence of evidence to the contrary, the presumption that the respondent has regularly performed his duties will prevail. Illupa vs. Abdullah, A.M. No. SCC-11-16-P. June 1, 2011

Administrative proceedings; mitigating circumstances. In several jurisprudential precedents, the Court has refrained from imposing the actual administrative penalties prescribed by law or regulation in the presence of mitigating factors. Factors such as the respondents’ length of service, the respondents’ acknowledgement of his or her infractions and feeling of remorse, family circumstances, humanitarian and equitable considerations, respondent’s advanced age, among other things, have had varying significance in the determination by the Court of the imposable penalty. Office of the Court Administrator vs. Aguilar, A.M. No. RTJ-07-2087, June 7, 2011

Court personnel; conduct prejudicial to the best interest of the service. Respondent was found to have knowingly delayed the release of a warrant of arrest against an accused in a criminal case until the accused had left the country. For knowingly delaying the release of the warrant of arrest, respondent had placed the court in a very negative light. It prejudiced the Court’s standing in the community as it projected an image of a Court that is unable to enforce its processes on time. For this reason, we find her liable not only for simple neglect of duty, but for the more serious offense of conduct prejudicial to the best interest of the service. Respondent clerk of court’s very much delayed action on the complainant’s request for a copy of the warrant of arrest in the criminal case and in the delivery of the warrant to the police authorities cast doubts on the capability of the court to administer justice fairly and expeditiously. Such act is likely to reflect adversely on the administration of justice. Thus, the respondent should be made to answer for her infraction in a way that will serve as a lesson to everyone in the judiciary to be forthright in his dealings with the public, and to act speedily on matters within his area of responsibility, regardless of who is involved. The prejudice she caused and her liability for her conduct can in no way be extinguished or mitigated by the issuance of a second warrant of arrest, or by the complainant’s subsequent voluntary desistance from pursuing the case. The harm had already been done on the aggrieved party and on the judiciary when these developments transpired. Sonido vs. Ilocso, A.M. No. P-10-2794. June 1, 2011

Court personnel; conduct unbecoming. The respondent MTCC court interpreter harassed and threatened her neighbors and even used the police to perpetrate these acts. By her actions, she directly implied that she was using her court position to unilaterally enforce what she wanted. Employees of the judiciary should be living examples of uprightness, not only in the performance of official duties, but also in their personal and private dealings with other people, so as to preserve at all times the good name and standing of the courts in the community. Any scandalous behavior or any act that may erode the people’s esteem for the judiciary is unbecoming of an employee. The Code of Judicial Ethics mandates that court personnel must not only be, but also be perceived to be, free from any impropriety with respect to both their official duties and their behavior anywhere else. The respondent’s ugly display of an oppressive and overbearing character failed to meet the exacting standards required of employees of the judiciary and deserves administrative sanctions from the Court. The respondent’s continued harassment of complainants to force them to leave the premises so she could occupy the whole place cannot and should not be countenanced. Clearly, respondent is guilty of oppression and of conduct unbecoming a court employee — acts that amount to simple misconduct. Mendez vs. Balbuena, A.M. No. P-11-2931. June 1, 2011

Court personnel; grave misconduct. Sheriffs play an important role in the administration of justice and high standards are expected of them. Their conduct, at all times, must not only be characterized by propriety and decorum but must, at all times, be above suspicion. Part of this stringent requirement is that agents of the law should refrain from the use of abusive, offensive, scandalous, menacing or otherwise improper language. Judicial employees are expected to accord due respect, not only to their superiors, but also to others and their rights at all times. Their every act and word should be characterized by prudence, restraint, courtesy and dignity. The respondent’s arrogant behavior was a violation of these rules of conduct for judicial employees. Flores vs. Pascasio, A.M. No. P-06-2130, June 13, 2011

Court personnel; grave misconduct. Respondent sheriff was found guilty of two offenses: (1) failure to make a return of a writ of execution within the period provided by the Rules of Court; and (2) failure to turn over the checks he received by virtue of the implementation of the writ to the court issuing it within the same day he received them. The duty of a sheriff to make a return of the writ is ministerial and it is not his duty to wait for the plaintiff to decide whether or not to accept the checks as payment. When a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with celerity and promptness to execute it according to its mandate. A sheriff has no discretion whatsoever with respect to the disposition of the amounts he receives. If he finds that there is a need to clarify what to do with the checks, prudence and reasonableness dictate that clarification be sought immediately from the clerk or judge issuing it. A sheriff is expected to know the rules of procedure pertaining to his functions as an officer of the court, relative to the implementation of writs of execution, and should, at all times, show a high degree of professionalism in the performance of his duties. Any act deviating from the procedure laid down by the Rules is misconduct that warrants disciplinary action. Office of the Court Administrator vs. Tolosa, A.M. No. P-09-2715. June 13, 2011

Court personnel; gross neglect of duty. [Respondent] should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case. The failure to submit the TSNs within the period prescribed constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense. The performance of a stenographer’s duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust.Absin vs. Montalla, A.M. No. P-10-2829. June 21, 2011

Court personnel; misconduct. Clerk of Court Joaquino was found guilty of grave misconduct, abuse of authority, and gross ignorance of the law. He filed a second motion for reconsideration contending that the penalty of six (6) months suspension without pay is too harsh and severe for the offense he was found guilty of. The Court, in the spirit of compassion, lowered the penalty imposed but warned him that a repetition of the same or similar offense in the future shall merit his dismissal from the service. Clerks of court occupy a sensitive position in the judicial system, they are required to safeguard the integrity of the court and its proceedings, to earn and preserve respect therefor, to maintain loyalty thereto and to the judge as superior officer, to maintain the authenticity and correctness of court records, and to uphold the confidence of the public in the administration of justice.Development Bank of the Philippines vs. Joaquinto, A.M. No. P-10-283, June 8, 2011

Judge; dishonesty. The accomplishment of the Personal Data Sheet (PDS) is a requirement under the Civil Service Rules and Regulations for employment in the government. Judge Aguilar was guilty of dishonesty in filling out her PDS when she answered that she had no pending administrative case against her and that she had not been formally charged nor found guilty of any administrative charge. Her failure to disclose such facts in her PDS filed upon her assumption of office when she already had notice of the adverse decision therein constitutes dishonesty, considered a grave offense under the Administrative Code of 1987, as well as the Civil Service Rules, with the corresponding penalty of dismissal from service even for the first offense. Office of the Court Administrator vs. Aguilar, A.M. No. RTJ-07-2087, June 7, 2011

Judge; gross ignorance of the law. Considering that complainant had already manifested in court, albeit belatedly, the presence of what it considered to be a valid Certification to File Action in court due to unsuccessful conciliation, respondent judge’s act of referring the case to barangay conciliation rendered its purpose moot and academic. The rules of procedure are clear and unambiguous, leaving no room for interpretation. The failure to apply elementary rules of procedure constitutes gross ignorance of the law and procedure. Neither good faith nor lack of malice will exonerate respondent because the rules violated were basic procedural rules. All that was needed for respondent to do was to apply them. Diaz vs. Gestopa, A.M. No. MTJ-11-1786. June 22, 2011

Judge; gross inefficiency. Respondent judge is liable for gross inefficiency for failing to adopt a system of record management in her court. Furthermore, respondent judge resolved a motion for reconsideration which was filed way beyond the required period. There was also a delay in sending the records of the appealed case to the CA. Respondent judge violated Rule 3.05, Canon 3 of the Code of Judicial Conduct which provides that “A judge shall dispose of the court’s business promptly and decide cases within the required periods.” Bareng vs. Daguna,A.M. No. RTJ-10-2246. June 1, 2011

Lawyers; administrative proceedings vis-à-vis contempt proceedings. When the Court initiates contempt proceedings and/or disciplinary proceedings against lawyers for intemperate and discourteous language and behavior directed at the courts, the evil sought to be prevented is the same – the degradation of the courts and the loss of trust in the administration of justice. For this reason, it is not unusual for the Court to cite authorities on bar discipline (involving the duty to give due respect to the courts) in contempt cases against lawyers and vice versa. When the Court chooses to institute an administrative case against a respondent lawyer, the mere citation or discussion in the orders or decision in the administrative case of jurisprudence involving contempt proceedings does not transform the action from a disciplinary proceeding to one for contempt. Re: Letter of UP Law Faculty entitled Restoring Integrity: A statement by the Faculty of the University of the Philippines College of Law etc., A.M. No. 10-10-4-SC, June 7, 2011

Shari’a Court personnel; abuse of authority. Respondent, a clerk of court of a Shari’a court, was found not to have abused his authority in issuing a certificate of divorce upon the request of the complainant’s wife. The issuance of a certificate of divorce is within the respondent clerk of court’s duties as defined by law in the Muslim Code of the Philippines. The respondent merely performed his ministerial duty. The alleged erroneous entries on the Certificate of Divorce cannot be attributed to respondent considering that it is only his duty to receive, file and register the certificate of divorce presented to him for registration. Further, even if there were indeed erroneous entries on the certificate of divorce, such errors cannot be corrected nor cancelled through an administrative complaint. Illupa vs. Abdullah, A.M. No. SCC-11-16-P. June 1, 2011