Friday, August 28, 2015

When Prisons Need to Be More Like Nursing Homes | The Marshall Project

See - When Prisons Need to Be More Like Nursing Homes | The Marshall Project

"x x x.

America’s prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren’t designed to serve as nursing homes.

Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation’s prison inmates---or 145,000 people ---were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration.

Caring for elderly inmates can cost up to twice as much as caring for younger ones. In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007—its most recent figures—the state’s corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.

Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care. “If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit’’ Stern said, “they would say, ‘O.K., where's your geriatric unit? Where's your dementia unit?’ It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization.”

x x x."

Prospectivity of laws; exception.

See - GENERAL PRINCIPLES: | MVP Law | Philippines

"x x x.

As a general rule, laws shall have no retroactive effect. However, exceptions exist, and one such exception concerns a law that is procedural in nature. The reason is that a remedial statute or a statute relating to remedies or modes of procedure does not create new rights or take away vested rights but only operates in furtherance of the remedy or the confirmation of already existing rights. A statute or rule regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of its passage. All procedural laws are retroactive in that sense and to that extent. The retroactive application is not violative of any right of a person who may feel adversely affected, for, verily, no vested right generally attaches to or arises from procedural laws.

x x x."

Thursday, August 27, 2015

Judge affirms P11.6-M bail for 15 massacre suspects

See - Judge affirms P11.6-M bail for 15 massacre suspects

"x x x.

The Quezon City court handling the Maguindanao massacre trial has denied the plea of 15 police officers to lower the P11.6-million earlier set in exchange for their temporary freedom.

In a three-page order, Regional Trial Court Branch 221 Assisting Judge Genie Gapas-Agbada denied the motion to reduce bail of the suspects, who asked the court to consider their financial capability.

Earlier, the court granted the suspects’ request that they be allowed to post bail in the multiple murder case. It set the bail at P200,000 for each of the 58 counts of murder, totaling P11.6 million.
In their appeal, the police officers invoked the “three-fold rule” in the Revised Penal Code, which states that the maximum duration of the sentence shall not be more than thrice the length of time of the most severe penalty.

The suspects argued that applying it to the bail, they should only pay for three counts, or only P600,000, and not the entire P11.6 million.

However in her ruling, Gapas-Agbada stressed that the “three-fold rule” has never been applied to bail petitions and is exclusive to the service of sentence of convicted individuals.

“Its intent is to enable prisoners, regardless of the severity of the crimes committed or penalties imposed to apply for parole or executive clemency and not to spend their entire lives in jail,” read the ruling.
Included in the motion were suspects PO1 Herich Amaba, PO3 Rasid Anton, PO2 Hernanie Decipulo Jr., PO3 Felix Enate Jr., PO1 Esprielito Lejarso, PO1 Narkouk Mascud and SPO1 Eduardo Ong.

Also included were PO2 Saudi Pasutan, PO1 Arnulfo Soriano, PO3 Abibudin Abdulgani, PO2 Hamad Nena, PO1 Esmael Guialal, SPO1 Oscar Donato, PO1 Abdullah Baguadadu and PO2 Saudier Ulah.

The police officers were among the 197 suspects initially charged for the Nov. 23, 2009 Maguindanao massacre.

Fifty-eight people, including 32 media practitioners, were killed in the incident. – Janvic Mateo

x x x."

Fourth Circuit: South Carolina's Automated Call Statute Is Unconstitutional - Consumer Protection - United States

See - Fourth Circuit: South Carolina's Automated Call Statute Is Unconstitutional - Consumer Protection - United States

"x x x.

On August 6, the United States Court of Appeals for the Fourth Circuit affirmed a federal district court decision invalidating South Carolina's statute banning automated calls for commercial or political purposes. The statute, enacted in 1991, restricted unsolicited automated calls "made for consumer, political, or other purposes." All qualifying automated calls were prohibited with exceptions only "based on express or implied consent of the called party." Violations constituted misdemeanor offenses, and carried fines from $200 to $500 or up to 30 days in prison.

Robert Cahaly, a "self-described Republican political consultant," was arrested in 2010 for alleged violations of the South Carolina law. Cahaly placed automated calls in six South Carolina state legislative districts on September 23, 2010, targeting Democratic incumbents prior to the November 2010 elections. After one of the targeted incumbents complained, a state judge issued six arrest warrants for Cahaly. Cahaly turned himself in, and after being released, filed suit challenging the state law's constitutionality.

The district court declared the law unconstitutional due to "its underinclusiveness and its singling out of commercial and political speech" in order to protect residential privacy. The Fourth Circuit agreed, citing the United States Supreme Court's recent 2015 decision in Reed v. Town of Gilbert, finding that the "statute is a content-based regulation that does not survive strict scrutiny."

Under the strict scrutiny standard, South Carolina had to prove "that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." The Fourth Circuit did not agree that the law was narrowly tailored, referencing "less restrictive alternatives includ[ing] time-of-day limitations, mandatory disclosure of the caller's identity, or do-not-call lists." The Court also found that the law was overly inclusive in targeting political calls, despite consumer complaints finding commercial calls to be a "far bigger problem," as well as underinclusive for restricting two categories of automated calls but allowing "unlimited proliferation of all other types."

The decision may call into question the constitutionality of other states' similar laws banning telemarketing with automatic telephone dialer systems as similarly impermissible content-based restrictions, but the Fourth Circuit's reference to commercial calls as eliciting a much larger share of complaints is noteworthy.

x x x."

How to testify effectively as a witness

See -

"x x x.
  • At the beginning of the examination you will be asked to swear or make a solemn affirmation that you will tell the truth when you answer questions.
  • Telling the truth is extremely important. False information risks undermining your credibility. It also may come back to “haunt” you later on in the lawsuit.
  • An examination is an opportunity for you to practice giving oral testimony. The impression you convey at the examination will greatly influence the opposing lawyer’s assessment of how you will perform as a witness. Accordingly, it is important to prepare for the examination and to create a good impression.
  • Dress in the same way you would for trial (a business suit) and conduct yourself as you would in front of a judge. Be solemn, professional and unemotional. Don’t make jokes. Maintain eye contact with the opposing counsel when answering a question.
  • Do not try to avoid difficult questions or topics. If you have concerns about portions of your testimony, discuss these with your lawyer before the examination.
  • Stay calm. Losing your temper will not help the accuracy of your answers and it may cause you to say things which you have not carefully considered.
  • Don’t bring any notes with you. You will not be allowed to refer to any notes during the examination. However, don’t forget that you can review documents before answering questions about them.
  • The other lawyer may try to “throw you off” or cause you to lose focus. They may try to make you angry or intimidate you.
  • Alternatively, the other lawyer may be really friendly with you and try to make you believe that he or she is your friend.
  • No matter what strategy the opposing lawyer uses, remember: opposing counsel is not your friend. Assume that opposing counsel knows everything and are very thoroughly prepared. Opposing counsel is there representing the interests of the adverse party. He or she is not there to help you with your case.
  • No matter what approach opposing counsel takes, always be on your guard.
  • If you don’t understand the question, or don’t know what the opposing lawyer is asking, say “I don’t understand the question”. Make sure you understand the question before you provide your answer.
  • Just answer what is asked – no more, no less.
  • Often, people will volunteer additional information that was not asked in the question. Don’t infer one question from another. For example:
Q: “Did you watch the hockey game last night?” A: (You may be tempted to answer) “No, I went to bed early.”
Q: “Does your mother live in Canada?” A: (You may be tempted to answer) “No, she lives overseas.”
  • However, the question asked calls for a “yes” or “no” answer, only. The other lawyer is not asking you what you did instead of watching the game. The other lawyer is not asking you where your mother lives, he or she is only asking if she lives in Canada. Don’t volunteer additional information that the opposing lawyer didn’t ask for.
  • If you are unsure about something, say so. It is very important that you do not guess at what you think the answer might be. There is nothing wrong with saying “I don’t recall at this time” or “I don’t know”.
  • Take your time – pause before answering a question. Remember, the “pause” does not show up on the transcript.
  • If you get into the habit of pausing, your pause will not be a signal to the other side if you are finding the question difficult.
  • Don’t let silence trouble you. The opposing lawyer may pause after you answer a question, inviting you to provide more information. Don’t start talking again to fill the silence. If you’re done answering, stop talking and just wait for the next question.
  • If you are asked a question about a document, take a moment and review the document before you answer the question.
  • Before the examination, you should review the documents at least twice: first, you should review the documents a few weeks before the examination. If, at that time, you have any questions about what is contained in the documents, talk to your lawyer as soon as possible. Second, you should review the documents a few days before the examination. You want to make sure the documents are fresh in your mind before you go to the examination.
  • Be careful of “lock-in” questions where opposing counsel tries to get you to agree that you always did something, that you never did something else or that you do or don’t do something every time. For example:
Q: “You lock your car every time you get out of it?”
Q: “You never spoke to Bob about the contract?”
  • Lock-in questions can also come up in the context of lists. For example:
Q: “Tell me the all reasons you did X.” A: “The reasons I did X are A, B, C.” Q: “So, you have now told me all of the reasons you did X?” (This is a lock-in question. If you say yes, you will not be able to offer additional reasons at trial should they occur to you.)
  • Unless you’re 100% sure that you always/never do a particular thing, it’s best to qualify your answer. For example:
A: “My practice is to always lock the car when I get out of it. But I can’t remember on that specific day if I actually did lock the car when I got out of it.”
A: “At this time I can’t remember ever speaking to Bob about the contract.”
A: “I’ve told you all the reasons that I did X that I can currently recall.”
  • If the other lawyer asks you to agree or disagree with a statement, be very careful. There is nothing wrong with agreeing or disagreeing with a statement if you agree or disagree with every part of that statement. However, if you don’t agree with the entire statement you need to make that clear. There’s nothing wrong with clarifying your answer when you respond. For example:
Q: “You’d agree with me that the letter wasn’t delivered until March 15?”
A: “Yes, I would agree that the letter wasn’t delivered until March 15 but there was a postal strike between the time I mailed the letter on March 1 and the time it was delivered on March 15. The strike caused the letter to be delivered late.”
  • Sometimes questions have incorrect assumptions built right into the question. If you don’t agree with the language in the question, make sure you clarify that in your answer. For example:
Q: “When did you destroy those documents?” A: “I discarded those documents in accordance with our business records policy on…”
Q: “When did you abandon the business?” A: “I stopped operating the business on February 22.”
  • These types of questions can come up most often in yes/no questions. If you agree with all the language is the question, then just answer yes or no. However, if you don’t agree with all the language in the question, don’t give a yes or no answer. Don’t forget you can qualify your answer when you give it. For example:
Q: “So you only did that job at that store for one week?” A: “Yes, but I had been doing the exact same job at another store for 20 years prior.”
  • If your lawyer refuses the question, or says “don’t answer that”, then don’t say anything else until the opposing lawyer asks the next question.
  • If the other lawyer asking for an “undertaking” or asks you to provide information after the discovery, let your lawyer respond to that question. x x x."

Section 3, Rule 10 of the Rules of Court specifically allows substantial amendment of responsive pleadings by leave of court. - G.R. No. 143264

"x x x.


“x x x.

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Resolution[1] of the Regional Trial Court of Legaspi City (RTC), dated November 11, 1999, dismissing petitioners complaint, and its Order[2] dated May 15, 2000, denying herein petitioners Motion for reconsideration and Motion to Admit Amended Complaint, be reversed and set aside.

X x x.

The Court shall first delve into the matter of the propriety of the denial of the motion to admit amended complaint.Pertinent provisions of Rule 10 of the Rules of Court provide as follows:

Sec. 2. Amendments as a matter of right. − A party may amend his pleadings once as a matter of right at any time before a responsive pleading is served x x x.

Sec. 3. Amendments by leave of court. − Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. x x x

It should be noted that respondents Lilian S. Soriano and the Estate of Leandro A. Soriano, Jr. already filed their Answer, to petitioners' complaint, and the claims being asserted were made against said parties. A responsive pleading
having been filed, amendments to the complaint may, therefore, be made only by
leave of court and no longer as a matter of right. However, in Tiu v. Philippine Bank of Communications,[4] the Court discussed this rule at length, to wit:

x x x [A]fter petitioners have filed their answer, Section 3, Rule 10 of the Rules of Court specifically allows amendment by leave of court. The said Section states:

SECTION 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of thecourt upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

This Court has emphasized the import of Section 3, Rule 10 of the 1997 Rules of Civil Procedure in Valenzuela v. Court of Appeals, thus:

Interestingly, Section 3, Rule 10 of the 1997 Rules of Civil Procedure amended the former rule in such manner that the phrase "or that the cause of action or defense is substantially altered" was stricken-off and not retained in the new rules. The clear import of such amendment in Section 3, Rule 10 is that under the new rules, "the amendment may (now) substantially alter the cause of action or defense."

This should only be true, however, when despite a substantial change or alteration in the cause of action or defense, the amendments sought to be made shall serve the higher interests of substantial justice, and prevent delay and equally promote the laudable objective of the rules which is to secure a "just, speedy and inexpensive disposition of every action and proceeding.

The granting of leave to file amended pleading is a matter particularly addressed to the sound discretion of the trial court; and that discretion is broad, subject only to the limitations that the amendments should not substantially change the cause of action or alter the theory of the case, or that it was not made to delay the action. Nevertheless, as enunciated inValenzuela, even if the amendment substantially alters the cause of action or defense, such amendment could still be allowed when it is sought to serve the higher interest of substantial justice, prevent delay, and secure a just, speedy and inexpensive disposition of actions and proceedings.

The courts should be liberal in allowing amendments to pleadings to avoid a multiplicity of suits and in order that the real controversies between the parties are presented, their rights determined, and the case decided on the merits without unnecessary delay. This liberality is greatest in the early stages of a lawsuit, especially in this case where the amendment was made before the trial of the case, thereby giving the petitioners all the time allowed by law to answer and to prepare for trial. 

Furthermore, amendments to pleadings are generally favored and should be liberally allowed in furtherance of justice in order that every case, may so far as possible, be determined on its real facts and in order to speed up the trial of the case or prevent the circuitry of action and unnecessary expense. That is, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which might justify a refusal of permission to amend.[5]

x x x."

Amendments to pleadings are favored and should be liberally allowed in furtherance of justice - G.R. No. 148120

See - G.R. No. 148120


"x x x.

The issue in this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court is whether Branch 21 of the Regional Trial Court of Mambusao, Capiz should admit the amended answer of petitioners.

x x x.

The Rules of Court allow amendments of pleadings as a matter of right before a responsive pleading is served;19 otherwise, leave of court must first be obtained.20

Our case law teaches us that amendments to pleadings are favored and should be liberally allowed in furtherance of justice. This liberality is greatest in the early stages of a lawsuit, decreases as it progresses, and changes at times to a strictness amounting to a prohibition. Amendments are likewise subject to the limitation that they are not dilatory.21 Thus, trial courts are given the discretion to grant leave of court to file amended pleadings, and their exercise of this discretion will normally not be disturbed on appeal, unless there is evident abuse thereof.22
In the case at bar, petitioners filed their motion for leave of court to admit amended answer only after respondents have rested their case. Petitioners argue that the error was due to the oversight of the three previous counsels. Petitioners' fourth counsel also claims that he learned of the alternative defense late as his clients (petitioners herein) did not inform him of the Deed of Sale.23 Allegedly, they relied on the advice of their previous counsels that the said deed of sale "was a mere scrap of paper because it was not signed by Carlito de Juan."24 Respondents contend that petitioners' motion is too late in the day.

Petitioners' motion for admission of amended answer may be a little tardy but this by itself is not a cause for its denial. Their amended answer alleges that respondents no longer own the subject property having sold the same to de Juan who, in turn, sold the property to petitioners. These allegations, if correct, are vital to the disposition of the case at bar. The interest of justice and equity demand that they be considered to avoid a result that is iniquitous.1 Truth cannot be barred by technical rules. For this reason, our ruling case law holds that amendments to pleadings are generally favored and should be liberally allowed in furtherance of justice so that every case may so far as possible be determined on its real facts and in order to prevent the circuity of action.25

We should always bear in mind that rules of procedure are mere tools designed to facilitate the attainment of justice. Their strict and rigid application especially on technical matters, which tends to frustrate rather than promote substantial justice, must be avoided. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from the courts.26

X x x.”

What to Expect From Your Lawyer

See - What to Expect From Your Lawyer

"x x x.

Lawyer Communication

Lawyer communication refers to the correspondence and communication between a client and his/her attorney. If you have a lawyer communication problem, you may be wondering if you have a bad attorney or if he or she is doing a poor job on your case. You should know that many states have laws regarding when and how a lawyer must communicate with clients.

In general, however, you should be able to expect to get a general overview of your case whenever you request it from your attorney. In addition, you should also expect your attorney to call you back or return your emails in a timely manner. If your attorney does not respond within a business day, he or she should provide you with a reason why they were unable to answer your question (typically, if your lawyer is working on multiple cases, he or she may be tied down in court on some days).

If your attorney fails to communicate effectively with you, then you may have valid cause for your worries. For example, if your attorney refuses to keep you updated on what is happening with your case, or fails to return your repeated phone calls over the course of a week with no explanation, then you most likely have valid cause to discuss your lawyer communication problem with your attorney. If your attorney is not responsive to your worries, then you may want to consider finding another legal representative for your situation.

In addition to lawyer communication problems, you may also have problems with the competency of your lawyer's work. Competency relates to the core knowledge and expertise of an attorney in handling a client's legal issue.

You should remember that lawyers are not machines and they are just as capable of making a mistake as anyone else is, meaning that there is never a guarantee that your attorney will perform flawless work. Remember that after your attorney passed your state's bar exam, he or she probably has not had to take a test since. Even truer, passing the bar exam is not guarantee that your lawyer is competent to represent you in court.

Many bar associations claim that they handle issues regarding the competency of lawyers, but you will often not receive much more than a shrug if you complain about your attorney's work. State bar associations are generally understaffed to investigate whether or not an attorney is working in such a way as to competently represent you.

However, you may have a claim for legal malpractice if your attorney makes a mistake or error that no reasonably competent attorney would make and that error led to you losing money or being harmed. In these situations, you have the option of suing your attorney and claiming that he or she did not act in a reasonably competent manner. These mistakes can be procedural in nature, such as not filing your lawsuit on time, or ethical in nature, like representing two sides of a divorce at the same time without notifying either side. However, as the laws are set up, malpractice lawsuits are generally quite expensive to pursue (you will probably have to hire another attorney to represent you), and very hard to win.

Although each state has their own set of ethical rules by which attorneys are expected to conduct their business, there are some common themes that run throughout all of them. These ethics rules generally require attorneys to:
Maintain the attorney-client privilege
Perform their duties to the degree of a reasonably competent attorney
Represent their client's interest loyally
Work within the bounds of the law
Maintain separate bank accounts for client money
Not engage in any criminal activities, and
Put their client's interests ahead of their own

Every state has some kind of agency that is responsible for disciplining attorneys and other legal professionals that violate the ethical rules that govern. The results of these disciplinary actions can include paying fines, returning stolen money, suspension from the practice of law, revocation of a law license (disbarment) and more.

Disputes regarding attorneys' fees are perhaps the most common problem that clients have with their lawyers. Fee disputes typically arise for many reasons, but the following are the most common:
Complaints about bills being too high
Disagreements over what kinds of fees would be charged to the client
Disagreements over whether an itemized bill would be given
Concerns that a lawyer spent too long on a task that should have been relatively easy
Argument that because an attorney did a bad job, the bill should be reduced
Billing at an attorney's rate for work done by a paralegal or legal secretary
Complaints regarding over-charging for time spent on a case.

The first thing that you should do upon finding and hiring the right lawyer for your case is to make sure that you get the fee agreement in writing that you can understand. If a term in the fee agreement is unclear to you, ask the attorney to re-write it in a way that is clear and understandable to you. Even if your state does not require a written fee agreement, it is still a good idea to have one. In addition, if you do not want to have your fee dispute end up in court, be sure that a mandatory arbitration clause is included in the fee agreement so that the dispute can take place in front of a neutral, third party instead of in an imposing courtroom.
What You Should Expect From Your Lawyer

Lawyer communication, competency, ethics, and fees are important aspects of an attorney-client relationship. As a summary you can expect your lawyer to do the following:
Give you advice about your legal situation
Keep you informed about your case
Tell you what he or she thinks will happen in your case
Allow you to make the important decisions regarding your case
Give you an estimate about what your case should cost
Assist you in any cost-benefit analyses that you may need
Keep in communication with you
Inform you of any changes, delays or setbacks
Give you the information you need to make good decisions, and
Prepare you for your case, including deposition and trial preparation.
What Your Lawyer Should Expect From You

Hiring a lawyer also creates a few responsibilities for you as a client. As a client, your lawyer can expect you to the do the following:
Abide by the agreements that both of you sign
Gather all useful evidence and prepare any timelines that are requested
Keep your lawyer informed as to any new evidence that may come to light
Keep in mind that your lawyer may have other clients that need his or her time
Reply to requests from your attorney in a timely manner
Inform your lawyer, in advance, when you will not be able to attend certain hearings or other proceedings
Pay your bills on time
Not to lie to your attorney, and
Keep your relationship with your attorney as a business relationship.
x x x."

- See more at:

Wednesday, August 26, 2015

House OKs bill giving OFWs equal protection on money claims | ABS-CBN News

See - House OKs bill giving OFWs equal protection on money claims | ABS-CBN News

"x x x.

MANILA - The House of Representatives said Tuesday that it has approved on third and final reading a bill granting overseas Filipino workers (OFWs) the right to equal protection on money claims.

House Bill 5988, authored by Rep. Ibarra M. Gutierrez III and former Rep. Walden F. Bello of Akbayan Party-list, seeks to amend Republic Act 8042, otherwise known as the “Migrant Workers and Filipino Migrants Act of 1995, as amended by RA 10022.”

In the proposed amendment, the clause "or for three months for every year of the unexpired term whichever is less" found on the fifth paragraph of Section 10 of RA 8042 was deleted. This clause refers to money claims made against the unexpired term of the migrant worker's contract.

The proposed law intends to give OFWs "full reimbursement of [their] placement fee and deduction made with interest at 12 percent, per annum, plus his salaries for the unexpired portion of his employment contract."

The Supreme Court, in 2009, already declared the clause "or for three months for every year of the unexpired term whichever is less" unconstitutional for violating equal protection afforded by the Constitution.

x x x."

Tuesday, August 25, 2015

U.S. Marine Testifies in Killing of Transgender Woman in Philippines - The New York Times

See - U.S. Marine Testifies in Killing of Transgender Woman in Philippines - The New York Times

"x x x.

MANILA — A United States Marine accused of killing a transgender woman in the Philippines acknowledged on Monday that he had choked her until she was no longer moving, but he stopped short of saying that he had killed her, according to the prosecutor assigned to the case.

The serviceman, Lance Cpl. Joseph Scott Pemberton, 20,was arrested in October in connection with the death of a 26-year-old Filipino, Jennifer Laude, whose name at birth was Jeffrey. Corporal Pemberton had met Ms. Laude in an Olongapo City nightclub while he was on liberty during military exercises, then accompanied her to a nearby hotel room, where she was later found dead.

Corporal Pemberton, who has been charged with murder, testified during his trial on Monday. It was the first time that he had publicly provided his account of what took place in the room with Ms. Laude.
He said that he brought Ms. Laude and another woman to the hotel, not knowing that they were transgender. He received oral sex from the women, he said, and one then left to buy condoms. Ms. Laude remained in the room, and he reached down to touch her vagina, he testified.

“He said they began fighting when he discovered that she had a penis,” Emilie Fe Delos Santos, the prosecutor in the case, said by phone from Olongapo City, about 80 miles north of Manila. In his testimony, Corporal Pemberton said that he pushed Ms. Laude, she slapped him, he punched her, then he choked her with an arm lock until she was no longer moving.

He also testified that Ms. Laude was still breathing but appeared to be unconscious after being put into the arm lock. He said he then brought her to the bathroom to try to revive her and left her slumped over the toilet. He said he then took a taxi back to his ship, where he told a fellow Marine, “I left her unconscious.”

“Pemberton did not kill Laude,” Corporal Pemberton’s lawyer, Rowena L. Garcia-Flores, wrote in an email on Monday. “He left Laude in the toilet alive.”

Ms. Garcia-Flores said that Corporal Pemberton had no criminal record and had never been in a fight before his altercation with Ms. Laude. She said that he acted to defend his honor when he discovered that Ms. Laude had a penis but that other factors led to the altercation, including his fear of being “scammed.”

“He was a victim of the fraud committed by a sex worker” who was older than him, she said in the email.

“Pemberton testified, ‘I felt like I was raped by Laude,’ ” she wrote in a subsequent email. “He was repulsed, felt violated and angry; that he would not have agreed to have sex with him if he knew he was a man.”

“It is a major admission that he performed an arm lock on Jennifer until she stopped moving,” said Harry Roque, a private lawyer who is helping Ms. Laude’s family.

If Corporal Pemberton is convicted of murder, he faces 40 years in prison, Mr. Roque said. If his lawyers can persuade the judge that there were complicating circumstances, like self-defense or deception regarding the victim’s gender, the court could lower the charge to homicide, which is punishable by 12 to 20 years. In the Philippines, there are no jury trials, and cases are decided by a judge.
x x x."

"Selective justice"; Enrile bail in non-bailable case

See - War of SC justices: Bersamin files complaint vs Leonen

"x x x.

Leonen was among the 4 justices who dissented in the High Tribunal’s ruling on August 18 that allowed Enrile temporary liberty even if he’s facing plunder charges, a typically non-bailable offense. The 17-page majority opinion’s main basis for the ruling is the Universal Declaration of Human Rights.
The 3 other dissenters were Sereno herself, as well as Senior Associate Justice Antonio Carpio and Associate Justice Estela Perlas-Bernabe. Except for Carpio, the dissenters are appointees of President Benigno Aquino III, whose administration filed the plunder charges against Enrile and two other senators in connection with the pork barrel scam.
'Gross distortion'
In his dissenting opinion that was longer than the majority opinion, Leonen said that the ruling prompts one to conclude that “the decision is the result of obvious political accommodation rather than a judicious consideration of the facts and the law.” (READ: #AnimatED: 'Special' treatment for Juan Ponce Enrile)
He also said the case may benefit “one powerful public official at the cost of weakening our legal institutions.” If it applies to this one particular occasion only, then “it amounts to selective justice.” (READ: Let's all get out of jail now)
x x x."

Lawyer-Client Privilege; Court Rejects “Gotcha” Theory of Waiver Under Public Records Act | Perkins Coie - JDSupra

See - Court Rejects “Gotcha” Theory of Waiver Under Public Records Act | Perkins Coie - JDSupra

"x x x.

A California appellate court has ruled that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege. Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015). A contrary interpretation, the court concluded, would not advance the purposes of the statute and would create an irreconcilable conflict with Evidence Code section 912, under which accidental disclosure of attorney-client information does not constitute a “disclosure” triggering its waiver provisions.

x x x."

Criminal justice reformers await holy ally: Pope Francis

See - Criminal justice reformers await holy ally: Pope Francis

"x x x.

There’s a long history of religious leaders writing and teaching from inside prisons — from Martin Luther King to Paul the Apostle. But 78-year-old Pope Francis may be the most prominent religious leader to ever advocate for prison reform from the outside.
Last year, Francis called for an end to solitary confinement, the death penalty and life imprisonment. He has knelt down to wash and then kiss the feet of Roman inmates on two of the first Holy Thursdays of his papacy. Visiting a group of Bolivian prisoners recently, the pope told them he sees no difference between them and himself — they are all sinners.
Now Francis is coming to the United States, much to the delight of criminal justice reformers who have waged a growing bipartisan battle to scale back and remake the mammoth U.S. penal system. Reformers hope Francis’ visit to the Curran-Fromhold Correctional Facility in Philadelphia next month as part of his six-day U.S. tour will grab lawmakers’ attention. A few days before visiting the inner-city prison, the pope will address Congress and could raise the issue of criminal justice reform there as well.
One in three Americans today has a criminal record, and the United States remains the largest jailer in the world, thanks in part to lengthy sentences for drug crimes. These bleak statistics have led many Republicans and Democrats — including most of the candidates for president — to question the current system. Yet despite broad bipartisan support that has joined unlikely allies such as the Koch brothers and President Obama, major legislative proposals have stalled in Congress. A big spotlight from this rock-star-like pope could give the issue a boost.
x x x."

On Supreme Court's Enrile ruling

See - It's time to make a stand on Supreme Court's Enrile ruling, says member of Cyber Plaza Miranda

"x x x.

When majority of the Supreme Court Justices reverse a long standing just principle to simply accommodate an influential politician, a democratic nation claiming to have been founded on the ideals of justice, equality and fairness for all leaves its existence open to question.
It leaves more questions as to whether any man of lesser stature can hope to find justice when his turn to be judged comes. It leaves an open wound to mothers whose children languish in jail just because they have less in life. It validates that decade old festering suspicion that in this land of ours justice is just for the rich. For hard working manual laborers langusihing in Muntinlupa, in their seventies, who happen to get caught stealing an extra bag of rice for their hungry families, they who could not be given an extra hour to go home and embrace their loved ones, this smacks of privileged living.
For an ex executioner of Martial Law to be rewarded this way on the anniversary of Ninoy’s death sure is a nice gift for the freedom these Justices and our society now enjoy. Nowhere in any civilized country today can one find a bunch of Justices simply relegating a just principle the way the eight Honorable Justices conducted this Enrile affair.
What holds our society together is this sense of fairness and justice, when that sense of fairness is thrown to the winds, dear Justices, you have just broken our country apart and found cause for your irrelevance. Is this what you truly want?
It`s time to make a stand.
x x x."

Twisted ruling; Enrile bail case- Inquirer Opinion

See - Twisted ruling | Inquirer Opinion


Philippine Daily Inquirer
August 24th, 2015 01:05 AM

THE STUNNING Supreme Court decision in Enrile vs Sandiganbayan is in truth, and in the trenchant phrasing of the dissenting opinion, a “special accommodation”—an extraordinary privilege for a politician who remains one of the country’s most powerful men despite a year in detention on plunder charges. To engineer this privileged arrangement, the eight-person majority who voted in favor of Sen. Juan Ponce Enrile had to twist this way and that, to rationalize its decision. That the honorable justices seemed to have found constitutional bases for their ruling only confirms the perception that lawyers can rationalize virtually anything. Where there is political will, there is a legal way.

Associate Justice Lucas Bersamin wrote the ponencia effectively granting bail to Enrile in a nonbailable case; he was joined by Associate Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Jose Perez and Jose Mendoza.

It is of no small moment that seven of these justices (all except Velasco) also joined in yet another controversial decision, again written by Bersamin; they formed the bulk of the nine-person majority that upheld in 2010 President Gloria Arroyo’s so-called midnight appointment of Renato Corona as chief justice. That ruling also squinted determinedly at the Constitution until the meaning of the provisions began to appear as the justices saw fit.

In De Castro vs Judicial and Bar Council, the high court reasoned that the express limitation on the power of the president of the Philippines to make appointments two months before the presidential elections does not apply to the Supreme Court. Why? Among other credibility-straining reasons: Because the framers of the Constitution placed the pertinent provision under Article VII, which is “devoted to the Executive Department,” rather than under Article VIII, which is “dedicated to the Judicial Department.”

Here is the argument that would shame a first-year law student: “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions.”

This is an astonishing view of the fundamental principle of the separation of powers. Many limitations on the scope of the executive’s duties and responsibilities can be found under other articles; those limiting the scope of the work of Congress can be found not only under Article VI, which defines the legislative department, but in other articles as well. And so on and so forth.

The dissenting opinion of Justice Conchita Carpio Morales made short work of such twisted thinking. “Section sequencing alone … does not suffice to signify functional structuring. That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.”

The Enrile decision is rich with similar embarrassments. Aside from the damning fact that the high court granted Enrile’s petition by creating a new, ill-defined argument on humanitarian grounds, an argument that the petitioner himself did not raise, there is also the tortuous thinking that sought to anchor the ruling on basic principles.

Perhaps the most absurd is the one the majority of the Court referred to again and again. “Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court.”

The argument is that the imposition of a steep enough cash bond would compel the accused to appear at his own trial (so as not to forfeit the money). Correct as far as it goes—but the Bersamin decision stretches this principle beyond the breaking point. If in fact the main consideration of the high court was Enrile’s appearance at his own plunder trial, what better guarantee could there have been than continuing detention at the headquarters of the national police?

In bending over backwards to extend a humanitarian courtesy to Enrile, the majority ended up twisting justice.

Read more:
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SC voids cut in benefits of health workers | Headlines, News, The Philippine Star |

See - SC voids cut in benefits of health workers | Headlines, News, The Philippine Star |

"x x x.

MANILA, Philippines - The Supreme Court (SC) has struck down government policies that lowered benefits of public health workers.
In a 19-page decision penned by Associate Justice Diosdado Peralta, the high court voided key provisions in the joint circulars issued by tbe Department of Health (DOH), Department of Budget and Management (DBM) and the Civil Service Commission (CSC) for violating Republic Act 7305 (Magna Carta of Public Health Workers).
Specifically voided were provisions of DBM-DOH Joint Circular dated Nov. 29, 2012 and DBM-CSC Joint Circular issued on Sept. 3, 2012.
The SC granted the petition of officers and members of the Philippine Public Health Association Inc. (PPHAI).
The high court held that the DBM-DOH circular violated the law “insofar as it lowers hazard pay at rates below the minimum” prescribed under the RA 7305.
Section 21 of the law and Section 7.1.5 (a) of its revised implementing rules and regulations provide that public health workers (PHWS) shall be compensated hazard allowances equivalent to at least 25 percent of the monthly basic salary of health workers receiving salary grade 19 and below, and five percent for health workers with salary grade 20 and above.
Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1
Such benefits may be granted on a monthly, quarterly or annual basis. 
The SC agreed with petitioners that the DBM-DOH circular should be voided as it made the hazard pay dependent on the actual days of exposure to the risk involved. 
“Thus, the rates embodied in Section 7.2 of DBM-DOH Joint Circular must be struck down as invalid for being contrary to the mandate of RA No. 7305 and its Revised IRR (implementing rules and regulations),” it explained.
Despite these findings, the SC did not declare the circular void in full. It upheld the validity of the DBM-DOH circular as to the qualification of actual exposure to danger for the PHWs’ entitlement to hazard pay, the rates of P50 and P25 subsistence allowance, and the entitlement to longevity pay on the basis of the workers’ status in the plantilla.
The high tribunal ruled that the DOH-CSC circular, on the other hand, was “unenforceable” insofar as it provides that an official or employee authorized to be granted longevity pay under an existing law is not eligible for the grant of a one-step increment due to length of service. 
The SC stressed that RA 7305 and its RIRR clearly do not impose a condition on the grant of longevity pay to PHWs.
“As such, the DBM-CSC Joint Circular effectively created a new imposition which was not otherwise stipulated in the law it sought to interpret,” the Court ruled. 
In their petition, the PPHAI argued that respondents DOH, DBM and CSC acted with grave abuse of discretion when they issued the assailed circulars which prescribe certain requirements on the grant of benefits that are not otherwise required by RA 7305. 
Nine other magistrates concurred in the ruling: Associate Justices Antonio Carpio, Presbitero Velasco Jr., Teresita Leonardo-de Castro, Arturo Brion, Lucas Bersamin, Martin Villarama, Jose Portugal Perez, Jose Catral Mendoza and Estela Perlas-Bernabe.
Associate Justice Marvic Leonen dissented while Associate Justice Francis Jardeleza took no part in the voting due to his previous role as solicitor general. 
Chief Justice Ma. Lourdes Sereno, Associate Justice Mariano del Castillo and Bienvenido Reyes were on leave when the case was promulgated.
x x x."

"Special treatment" in non-bailable criminal cases; the Enrile bail ruling.

See - Palace fears Gloria Arroyo, others next | Inquirer News

"x x x.

Lack of guidance

Citing the dissent of Associate Justice Marvic Leonen, De Lima noted “the lack of guidance or standards in the majority ruling as to how to deal with similar petitions for bail.”

In his dissent, Leonen criticized the majority decision as a special treatment for an “unbelievably more fortunate” petitioner compared with other aged and sick detainees, decided on humanitarian grounds that do not even exist in the law.

Leonen said the ruling gave “no guidance to the Sandiganbayan if bail can be canceled motu proprio, or upon motion.”

The decision also lacked guidance on whether the special grant of bail based on ill health “is applicable only to those of advanced age and whether that advanced age is beyond 90 to 91 years old” or only in cases involving plunder, Leonen said.

Accused of graft and plunder over his alleged role in the P10-billion pork barrel scam, Enrile, 91, walked out of hospital detention on Thursday after the Supreme Court released its ruling.

He posted P1.4-million bail at the Sandiganbayan and was released.

On Friday, Enrile visited Revilla and Estrada at the Philippine National Police custodial center in Camp Crame to give them words of hope.

Revilla and Estrada are also accused of graft and plunder for allegedly pocketing hundreds of millions of pesos in kickbacks in the pork barrel scam. Both are under 60 and are fighting to be allowed bail.

Arroyo, 68, is suffering from cervical spondylosis and is detained at Veterans Memorial Medical Center in Quezon City on plunder charges involving the misuse of the Philippine Charity Sweepstakes Office’s intelligence funds. The Sandiganbayan has rejected her petition for bail.

x x x."

Read more:

Wednesday, August 19, 2015

R.A. 10389; release on recognizance

See -

R.A. 10389; release on recognizance; implementing guidelines. Click the link above.


See -



Implementing Rules and Regulations according to the provisions of: 

1. Section 19 (d) and 6 of Presidential Decree (PD) No. 968, 

2. The Probation Law of 1976, embodied in
Sections 23 - 25, Chapter 7, Title III, Book IV, Executive Order No. 292, otherwise known as the
Administrative Code of 1987.

Releasing prisoners in non-bailable crimes; the Enrile precedent

It is claimed that the courts have the discretion to grant bail in non-bailable offenses.

Note, though, that it's Congress, exercising its constitutional power to legislate, that determines which crimes are bailable and non-bailable.

If the law is clear, it needs only to be applied, not interpreted, more so when the law sets no exceptions.

May the SC judicially legislate and impose its own exceptions when a penal law is clear as to its scope and application?

Is the matter of bail a simple Remedial Law procedure that is reserved only to the Judiciary to determine?

As we consider the pro hac vice bail ruling of the SC in the case Enrile, let's not forget the thousands of old, sick, mentally disturbed and hopeless inmates languishing in our hellish prisons nationwide.

If we follow the SC's application of humanitarianism in the case of Enrile, shouldn't the Judiciary now take the proactive stance of studying the release of these suffering and dying inmates?

That is, if the SC believes that discrimination has no place in our justice system.

Friday, August 7, 2015

1998 UN declaration on human rights defenders

See - Philippines/USA: Restrictions on the freedom of movement and (...)

"x x x.

...United Nations Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, ...:

Article 1: “...everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels”;

Article 5(a): “...For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels (...) To meet or assemble peacefully”

Article 12.1:“...everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms”;

Article 12.2: “...the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration;

x x x."

Gross ignorance of the law or procedure is classified as a serious charge

ANTONIO M. LORENZANA vs. JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2, Batangas City, A.M. No. RTJ-09-2200, April 2, 2014 (formerly OCA I.P.I. No. 08-2834-RTJ)

“x x x,

Imposable Penalty

Under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, gross ignorance of the law or procedure is classified as a serious charge. Under Section 11(A) of the same Rule, a serious charge merits any of the following sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations; provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3), but not exceeding six (6), months; or

3. A fine of more than P20,000.00, but not exceeding P40,000.00.

On the other hand, conduct unbecoming of a judge is classified as a light offense under Section 10, Rule 140 of the Rules of Court. It is penalized under Section 11(C) thereof by any of the following: (1) A fine of not less than P1,000.00 but not exceeding P10,000.00; (2) Censure; (3) Reprimand; and ( 4) Admonition with warning.

Judge Austria's record shows that she had never been administratively charged or found liable for any wrongdoing in the past. Since this is her first offense, the Court finds it fair and proper to temper the penalty for her offenses.

X x x.”

Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

ANTONIO M. LORENZANA vs. JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2, Batangas City, A.M. No. RTJ-09-2200, April 2, 2014 (formerly OCA I.P.I. No. 08-2834-RTJ)

“x x x.

On the Ground of Impropriety

We are not unaware of the increasing prevalence of social networking sites in the Internet – a new medium through which more and more Filipinos communicate with each other.45 While judges are not prohibited from becoming members of and from taking part in social networking activities, we remind them that they do not thereby shed off their status as judges. They carry with them in cyberspace the same ethical responsibilities and duties that every judge is expected to follow in his/her everyday activities. It is in this light that we judge the respondent in the charge of impropriety when she posted her pictures in a manner viewable by the public.

Lest this rule be misunderstood, the New Code of Judicial Conduct does not prohibit a judge from joining or maintaining an account in a social networking site such as Friendster. Section 6, Canon 4 of the New Code of Judicial Conduct recognizes that judges, like any other citizen, are entitled to freedom of expression. This right "includes the freedom to hold opinions without interference and impart information and ideas through any media regardless of frontiers."46 Joining a social networking site is an exercise of one’s freedom of expression. The respondent judge’s act of joining Friendster is, therefore, per se not violative of the New Code of Judicial Conduct.

Section 6, Canon 4 of the New Code of Judicial Conduct, however, also imposes a correlative restriction on judges: in the exercise of their freedom of expression, they should always conduct themselves in a manner that preserves the dignity of the judicial office and the impartiality and independence of the Judiciary.

This rule reflects the general principle of propriety expected of judges in all of their activities, whether it be in the course of their judicial office or in their personal lives. In particular, Sections 1 and 2 of Canon 4 of the New Code of Judicial Conduct prohibit impropriety and even the appearance of impropriety in all of their activities:

SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

SECTION 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.

Based on this provision, we hold that the respondent disregarded the propriety and appearance of propriety required of her when she posted Friendster photos of herself wearing an "off-shouldered" suggestive dress and made this available for public viewing.

To restate the rule: in communicating and socializing through social networks, judges must bear in mind that what they communicate – regardless of whether it is a personal matter or part of his or her judicial duties – creates and contributes to the people’s opinion not just of the judge but of the entire Judiciary of which he or she is a part. This is especially true when the posts the judge makes are viewable not only by his or her family and close friends, but by acquaintances and the general public.

Thus, it may be acceptable for the respondent to show a picture of herself in the attire she wore to her family and close friends, but when she made this picture available for public consumption, she placed herself in a situation where she, and the status she holds as a judge, may be the object of the public’s criticism and ridicule. The nature of cyber communications, particularly its speedy and wide-scale character, renders this rule necessary.

We are not also unaware that the respondent’s act of posting her photos would seem harmless and inoffensive had this act been done by an ordinary member of the public. As the visible personification of law and justice, however, judges are held to higher standards of conduct and thus must accordingly comport themselves.47

This exacting standard applies both to acts involving the judicial office and personal matters. The very nature of their functions requires behavior under exacting standards of morality, decency and propriety; both in the performance of their duties and their daily personal lives, they should be beyond reproach.48 Judges necessarily accept this standard of conduct when they take their oath of office as magistrates.

X x x.”